Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Rules and Regulations 87937 

and recordkeeping requirements, Sulfur 

dioxide, Volatile organic compounds. 

Authority: 42 U.S.C. 7401 et seq. 

Dated: December 12, 2023. 

Martha Guzman Aceves, 

Regional Administrator, Region IX. 

[FR Doc. 2023–27687 Filed 12–19–23; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 217 

[Docket No. 231213–0302] 

RIN 0648–BK57 

Taking and Importing Marine 

Mammals; Taking Marine Mammals 

Incidental to the U.S. Coast Guard’s 

Alaska Facility Maintenance and 

Repair Activities 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule; notification of 

issuance of Letter of Authorization. 

SUMMARY: NMFS, upon request from the 

United States Coast Guard (Coast 

Guard), hereby issues regulations to 

govern the unintentional taking of 

marine mammals incidental to 

maintenance and repair at facilities in 

Alaska, over the course of 5 years 

(2023–2028). These regulations, which 

allow for the issuance of a Letter of 

Authorization (LOA) for the incidental 

take of marine mammals during the 

described activities and specified 

timeframes, prescribe the permissible 

methods of taking and other means of 

effecting the least practicable adverse 

impact on marine mammal species or 

stocks and their habitat, as well as 

requirements pertaining to the 

monitoring and reporting of such taking. 

DATES: Effective from March 1, 2024, 

through February 28, 2029. 

ADDRESSES: A copy of the Coast Guard’s 

application and any supporting 

documents, as well as a list of the 

references cited in this document, may 

be obtained online at: https://

www.fisheries.noaa.gov/action/ 

incidental-take-authorization-us-coastguards-alaska-facility-maintenanceand-repair. In case of problems 

accessing these documents, please call 

the contact listed below. 

FOR FURTHER INFORMATION CONTACT: Cara 

Hotchkin, Office of Protected Resources, 

NMFS, (301) 427–8401. 

SUPPLEMENTARY INFORMATION: 

Purpose and Need for Regulatory 

Action 

We received an application from the 

Coast Guard requesting 5-year 

regulations and authorization to take 

multiple species of marine mammals. 

This rule establishes a framework under 

the authority of the MMPA (16 U.S.C. 

1361 et seq.) to allow for the 

authorization of take of marine 

mammals incidental to the Coast 

Guard’s construction activities related to 

maintenance and repair at facilities in 

Alaska. 

Legal Authority for the Action 

Section 101(a)(5)(A) of the MMPA (16 

U.S.C. 1371(a)(5)(A)) directs the 

Secretary of Commerce to allow, upon 

request, the incidental, but not 

intentional taking of small numbers of 

marine mammals by U.S. citizens who 

engage in a specified activity (other than 

commercial fishing) within a specified 

geographical region for up to 5 years if, 

after notice and public comment, the 

agency makes certain findings and 

issues regulations that set forth 

permissible methods of taking pursuant 

to that activity and other means of 

effecting the ‘‘least practicable adverse 

impact’’ on the affected species or 

stocks and their habitat (see the 

discussion below in the Mitigation 

section), as well as monitoring and 

reporting requirements. Section 

101(a)(5)(A) of the MMPA and the 

implementing regulations at 50 CFR part 

216, subpart I provide the legal basis for 

issuing this final rule containing 5-year 

regulations, and for any subsequent 

Letters of Authorization (LOAs). As 

directed by this legal authority, this 

final rule contains mitigation, 

monitoring, and reporting requirements. 

Summary of Major Provisions Within 

the Regulations 

Following is a summary of the major 

provisions of this rule regarding Coast 

Guard construction activities. These 

measures include: 

• Required monitoring of the 

construction areas to detect the presence 

of marine mammals before beginning 

construction activities; 

• Shutdown of construction activities 

under certain circumstances to avoid 

injury of marine mammals; and 

• Soft start for impact pile driving to 

allow marine mammals the opportunity 

to leave the area prior to beginning 

impact pile driving at full power. 

Background 

The MMPA prohibits the ‘‘take’’ of 

marine mammals, with certain 

exceptions. Sections 101(a)(5)(A) and 

(D) of the MMPA (16 U.S.C. 1361 et 

seq.) direct the Secretary of Commerce 

(as delegated to NMFS) to allow, upon 

request, the incidental, but not 

intentional, taking of small numbers of 

marine mammals by U.S. citizens who 

engage in a specified activity (other than 

commercial fishing) within a specified 

geographical region if certain findings 

are made and either regulations are 

issued or, if the taking is limited to 

harassment, a notice of a proposed 

incidental take authorization may be 

provided to the public for review. 

Authorization for incidental takings 

shall be granted if NMFS finds that the 

taking will have a negligible impact on 

the species or stock(s) and will not have 

an unmitigable adverse impact on the 

availability of the species or stock(s) for 

taking for subsistence uses (where 

relevant). Further, NMFS must prescribe 

the permissible methods of taking and 

other ‘‘means of effecting the least 

practicable adverse impact’’ on the 

affected species or stocks and their 

habitat, paying particular attention to 

rookeries, mating grounds, and areas of 

similar significance, and on the 

availability of the species or stocks for 

taking for certain subsistence uses 

(referred to as ‘‘mitigation’’); and 

requirements pertaining to the 

mitigation, monitoring, and reporting of 

the takings are set forth. The definitions 

of all applicable MMPA statutory terms 

cited above are included in the relevant 

sections below. 

Summary of Request 

On March 15, 2021, NMFS received 

an application from the Coast Guard 

requesting authorization for take of 

marine mammals incidental to 

construction activities related to 

maintenance and repair at eight Coast 

Guard facilities in Alaska. On November 

24, 2021 (86 FR 67023), we published a 

notice of receipt of the Coast Guard’s 

application in the Federal Register, 

requesting comments and information 

related to the request for 30 days. We 

received no public comments. 

Following additional review, we 

determined the application was 

adequate and complete on January 19, 

2022. On August 12, 2022, the Coast 

Guard submitted a modification to their 

application (to include vibratory driving 

of composite piles as part of the 

specified activity). This revised 

application was deemed adequate and 

complete on August 31, 2022. On April 

28, 2023, we published the proposed 

rule in the Federal Register (88 FR 

26432), incorporating the changes 

submitted by the Coast Guard in August 

2022, and requested comments and 


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87938 Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Rules and Regulations 

information from the public. We 

received no public comments. The 

regulations in this final rule are valid for 

5 years after the initial effective date, 

and allow for authorization of take of 12 

species of marine mammals by Level A 

and Level B harassment incidental to 

construction activities related to facility 

maintenance and repair at 8 sites in 

Alaska. Neither the Coast Guard nor 

NMFS expect serious injury or mortality 

to result from this activity. 

Description of the Specified Activity 

The Coast Guard plans to conduct 

construction necessary for maintenance 

and repair of existing in-water 

structures at the following eight Coast 

Guard station facilities in Alaska: 

Kodiak, Sitka, Ketchikan, Valdez, 

Cordova, Juneau, Petersburg, and 

Seward. These repairs will include 

installation and removal of steel, 

concrete, and timber piles, involving 

use of impact and vibratory hammers 

and Down-The-Hole drilling (DTH) 

equipment, and removal of piles by 

cutting, clipping, or vibratory 

extraction. Maintenance activities may 

also include underwater power 

washing. Up to 245 piles will be 

removed and replaced on a 1-to-1 basis 

(i.e., total pile numbers at these facilities 

are expected to remain the same) over 

the 5-year period of effectiveness for the 

regulations. Hereafter (unless otherwise 

specified or detailed) we use the term 

‘‘pile driving’’ to refer to both pile 

installation and pile removal. The use of 

vibratory, DTH, and impact pile driving 

equipment is expected to produce 

underwater sound at levels that have the 

potential to result in harassment of 

marine mammals. 

A more detailed description of the 

planned construction project is 

provided in the proposed rule (88 FR 

26432, April 28, 2023). Since that time, 

no changes have been made to the 

planned activities. Therefore, a detailed 

description is not provided here. Please 

refer to the proposed rule (88 FR 26432, 

April 28, 2023) for the detailed 

description of the specific planned 

activities at each facility. 

Comments and Responses 

The proposed rule to authorize take of 

marine mammals incidental to 

construction activities related to 

maintenance and repair at eight Coast 

Guard facilities in Alaska (88 FR 26432; 

April 28, 2023) provided detailed 

descriptions of Coast Guard’s activities, 

the marine mammal species that may be 

affected by the activities, and the 

anticipated effects on marine mammals, 

and requested public input on the Coast 

Guard’s request for authorization, our 

analyses, the proposed authorization, 

and any other aspect of the proposed 

authorization. The proposed rule 

requested that interested persons submit 

relevant information, suggestions, and 

comments in a 30-day public comment 

period. NMFS received no substantive 

public comments on the proposed rule. 

Changes From the Proposed Rule 

Since the proposed rule was 

published (88 FR 26432, April 28, 

2023), NMFS published the final 2022 

Alaska and Pacific Stock Assessment 

Reports (SAR), available at https://

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/marinemammal-stock-assessment-reportsregion, which describe revised stock 

structures under the MMPA for 

humpback whales and southeast Alaska 

harbor porpoise (Carretta et al., 2023; 

Young et al., 2023). In the proposed 

rule, we explained that, although we 

typically consider updated peerreviewed data provided in draft SARs to 

be the best available science, and use 

the information accordingly, proposed 

revisions to stock structures are 

excepted due to potential changes based 

on public comments, and it is more 

appropriate to use the status quo stock 

structures until the new stock structures 

are finalized. Therefore, upon 

finalization of these revised stock 

structures in the final SARs, we have 

made appropriate updates in this final 

rule. This includes updates in the 

description of the potentially affected 

stocks (see the Description of Marine 

Mammals in the Area of the Specified 

Activity section, including table 1), the 

attribution of take numbers to stock (see 

the Estimated Take section), and the 

analyses to ensure the necessary 

determinations are made for the new 

stocks (see the Negligible Impact 

Analysis and Determination and Small 

Numbers sections). 

In table 1, we updated the stock 

information to reflect the finalized 

humpback whale and harbor porpoise 

stock structures. For humpback whale, 

the Central and Western North Pacific 

Stocks have been replaced by the 

Hawai1i and Mexico-North Pacific 

stocks; for harbor porpoise, the 

Southeast Alaska stock has been split 

into the Northern Southeast Alaska 

Inland Waters, Southern Southeast 

Alaska Inland Waters, and Yakutat/ 

Southeast Alaska Offshore Waters 

stocks. New stocks have been updated 

to include associated ESA/MMPA 

status, stock abundance data, PBR, and 

Annual Mortality and Serious Injury 

data. Updates to stock names have also 

been carried through in tables 9 through 

16, as relevant, and stock ranges have 

been noted in footnotes on table 13. 

NMFS has also made a few minor 

corrections in this final rule. In Table 7 

of the Estimated Take section of the 

proposed rule, the correct reference for 

the sound source level for impact 

installation of 24-inch concrete piles is 

‘‘Washington State Department of 

Transportation (WSDOT) (2007)’’, not 

‘‘WSDOT (2020)’’; the correct reference 

has been included in Table 4 in this 

final rule. In the regulatory text of this 

final rule, text relating to Protected 

Species Observer (PSO) qualifications 

(§ 217.195 (b)) has been subdivided into 

§ 217.195(b)(1) to § 217.195(b)(5) for 

clarity. Additionally, the following text 

was added to § 217.195(e)(1)(ii)(B) 

‘‘When possible, the number of strikes 

for each pile/hole (impact driving, 

DTH); and, for DTH, the duration of 

operation for both impulsive and nonimpulsive components as well as the 

strike rate must be included’’ for 

consistency with current guidelines on 

hydroacoustic data collection. 

This final rule also corrects addition 

errors in two tables in the proposed 

rule: table 15 (Level B Harassment Take 

in Each of the Five Years and in Total) 

and table 19 (Proposed Level A and 

Level B Harassment Take and Percent of 

Stock for the Highest Annual Estimated 

Takes of the Project). In table 15, the 

total estimated take for minke whale 

should have been 26, rather than 25. In 

table 19 (which is Table 16 in this final 

rule), the total number of takes from the 

‘‘harbor porpoise—Gulf of Alaska’’ stock 

should have summed to 200 rather than 

245. 

This final rule also includes 

corrections to several typographical 

errors in the proposed rule at table 16 

(Proposed Level B Harassment Take for 

Each Facility), which is table 13 in this 

final rule. Footnote indicators from the 

application were accidentally included 

in the take numbers for killer whales 

and Pacific white-sided dolphins at 

Cordova and Seward, and for Northern 

fur seals at Seward. Also, in table 16 of 

the proposed rule, the values for killer 

whale were incorrectly ordered. While 

the order of the column headers was 

‘‘Kodiak; Sitka; Ketchikan; Seward; 

Valdez; Cordova; Juneau; Petersburg’’, 

the order of the take estimates presented 

for killer whales was ‘‘Kodiak; Sitka; 

Ketchikan; Valdez; Cordova; Juneau; 

Petersburg; Seward’’, resulting in errors 

for Seward, Valdez, Cordova, Juneau, 

and Petersburg. These errors impacted 

the site-specific take calculations and 

total estimates of take by Level B 

harassment for these species. The 

correct take estimates have been carried 

through and are shown in tables 12, 13, 


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and 16 of this final rule. All corrections 

to proposed rule Table 16 resulted in a 

lower amount of take by Level B 

harassment than that shown in the 

proposed rule. Total take by Level B 

Harassment over the course of the 5-year 

authorization changed as follows: 

• Killer whales: proposed: 797; final: 

543; 

• Pacific white-sided dolphin: 

proposed: 1,379; final: 1,105; and 

• Northern fur seal: proposed: 181; 

final: 71. 

Description of Marine Mammals in the 

Area of the Specified Activity 

We have reviewed the Coast Guard’s 

LOA application, including the species 

descriptions that summarize available 

information regarding status and trends, 

distribution and habitat preferences, 

behavior and life history, and auditory 

capabilities of the potentially affected 

species, for accuracy and completeness 

and refer the reader to Sections 3 and 4 

of the application, instead of reprinting 

all of the information here. Additional 

information regarding population trends 

and threats may be found in NMFS’ 

SARs (www.fisheries.noaa.gov/national/ 

marine-mammal-protection/marinemammal-stock-assessments) and more 

general information about these species 

(e.g., physical and behavioral 

descriptions) may be found on NMFS’ 

website (www.fisheries.noaa.gov/findspecies). 

Table 1 lists all species or stocks for 

which take is expected and authorized 

for this action and summarizes 

information related to the population or 

stock, including regulatory status under 

the MMPA and the Endangered Species 

Act (ESA) and potential biological 

removal (PBR), where known. PBR, 

defined by the MMPA as the maximum 

number of animals, not including 

natural mortalities, that may be removed 

from a marine mammal stock while 

allowing that stock to reach or maintain 

its optimum sustainable population, is 

considered in concert with known 

sources of ongoing anthropogenic 

mortality (as described in NMFS’ SARs). 

While no mortality is anticipated or 

authorized here, PBR and annual 

serious injury and mortality from 

anthropogenic sources are included here 

as gross indicators of the status of the 

species and other threats. 

Marine mammal abundance estimates 

presented in this document represent 

the total number of individuals that 

make up a given stock or the total 

number estimated within a particular 

study or survey area. NMFS’ stock 

abundance estimates for most species 

represent the total estimate of 

individuals within the geographic area, 

if known, that comprises that stock. For 

some species, this geographic area may 

extend beyond U.S. waters. All managed 

stocks in the specified geographical 

regions are assessed in either NMFS’ 

U.S. Alaska SARs or U.S. Pacific SARs. 

All values presented in table 1 are the 

most recent available at the time of 

writing, including in the final 2022 

SARs, and are available online at: 

https://www.fisheries.noaa.gov/ 

national/marine-mammal-protection/ 

marine-mammal-stock-assessmentreports-species-stock. 

TABLE 1—SPECIES LIKELY IMPACTED BY THE SPECIFIED ACTIVITIES

Common name Scientific name Stock 

ESA/ 

MMPA 

status; 

strategic 

(Y/N) 1

Stock abundance 

(CV, Nmin, most recent 

abundance survey) 2

PBR Annual 

M/SI 3

Order Cetartiodactyla—Cetacea—Superfamily Mysticeti (baleen whales) 

Family Eschrichtiidae: 

Gray whale ....................... Eschrichtius robustus ............. Eastern North Pacific ............. -, -, N 26,960 (0.05, 25,849, 2016) .. 801 131 

Family Balaenopteridae 

(rorquals): 

Humpback whale .............. Megaptera novaeangliae ........ Hawai1i ....................................

Mexico—North Pacific ............

-, -, N 

T, D, Y 

11,278 (0.56, 7,265, 2020) ....

918 (0.217, UNK, 2006) .........

127 

UND 

27.09 

0.57 

Fin whale .......................... Balaenoptera physalus ........... Northeast Pacific .................... E, D, Y UND (UND, UND, 2013) ........ UND 0.6 

Minke whale ..................... Balaenoptera acutorostrata .... Alaska ..................................... -, -, N N/A (N/A, N/A, N/A) 4 ............. UND 0 

Superfamily Odontoceti (toothed whales, dolphins, and porpoises) 

Family Delphinidae: 

Killer whale ....................... Orcinus orca ........................... Eastern North Pacific Alaska 

Resident.

-, -, N 1,920 (N/A, 1,920, 2009) ....... 19 1.3 

Eastern North Pacific Gulf of 

Alaska, Aleutian Islands, 

Bearing Sea Transient.

-, -, N 587 (N/A, 587, 2012) ............. 5.9 0.8 

Eastern North Pacific Northern Resident.-, -, N 302 (N/A, 302, 2018) ............. 2.2 0.2 

AT1 Transient ......................... -, D, Y 7 (N/A, 7, 2019) ..................... 0.1 0 

West Coast Transient ............ -, -, N 349 (N/A, 349, 2018) ............. 3.5 0.4 

Pacific white-sided dolphin Lagenorhynchus obliquidens North Pacific ........................... -, -, N 26,880 (UND, UND, 1990) ..... UND 0 

Family Phocoenidae (porpoises): 

Dall’s porpoise 5 ............... Phocoenoides dalli ................. Alaska ..................................... -, -, N UND (UND, UND, 2015) ........ UND 37 

Harbor porpoise ............... Phocoena phocoena .............. Northern Southeast Alaska Inland Waters.-, -, Y 1,619 (0.26, 1,250, 2019) ...... 13 5.6 

Southern Southeast Alaska 

Inland Waters.

-, -, Y 890 (0.37, 610, 2019) ............ 6.1 7.4 

Yakutat/Southeast Alaska Offshore Waters.-, -, N UND (UND, UND, N/A) .......... UND 22.2 

Gulf of Alaska ......................... -, -, Y 31,046 (0.21, N/A, 1998) ....... UND 72 

Order Carnivora—Superfamily Pinnipedia 

Family Otariidae (eared seals 

and sea lions): 

California sea lion ............ Zalophus californianus ........... U.S. ........................................ -, -, N 257,606 (N/A, 233,515, 2014) 14,011 >321 

Northern fur seal .............. Callorhinus ursinus ................. Eastern Pacific ....................... -, D, Y 626,618 (0.2, 530,376, 2019) 11,403 373 


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87940 Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Rules and Regulations 

TABLE 1—SPECIES LIKELY IMPACTED BY THE SPECIFIED ACTIVITIES—Continued 

Common name Scientific name Stock 

ESA/ 

MMPA 

status; 

strategic 

(Y/N) 1

Stock abundance 

(CV, Nmin, most recent 

abundance survey) 2

PBR Annual 

M/SI 3

Steller sea lion ................. Eumetopias jubatus ................ Eastern ...................................

Western ..................................

-,-, N 

E, D, Y 

43,201 (N/A, 43,201, 2017) ...

52,932 (N/A, 52,932, 2019) ...

2,592 

318 

112 

254 

Family Phocidae (earless 

seals): 

Harbor seal ....................... Phoca vitulina ......................... Prince William Sound ............. -, -, N 44,756 (N/A, 41,776, 2015) ... 1,253 413 

Lynn Canal/Stephens Passage.-, -, N 13,388 (N/A, 11,867, 2016) ... 214 50 

Sitka/Chatham Straight .......... -, -, N 13,289 (N/A, 11,883, 2015) ... 356 77 

Clarence Strait ....................... -, -, N 27,659 (N/A, 24,854, 2015) ... 746 40 

South Kodiak .......................... -, -, N 26,448 (N/A, 22,351, 2017) ... 939 127 

1ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be 

declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA 

as depleted and as a strategic stock. 2 NMFS marine mammal stock assessment reports online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments/. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable (N/A). UND indicates data unavailable. 3These values, found in NMFS’ SARs, represent annual levels of human-caused mortality plus serious injury (M/SI) from all sources combined (e.g., commercial 

fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases. 4 No population estimates have been made for the number of minke whales in the entire North Pacific. Some information is available on the numbers of minke 

whales in some areas of Alaska, but in the 2009, 2013, and 2015 offshore surveys, so few minke whales were seen during the surveys that a population estimate for 

the species in this area could not be determined (Rone et al., 2017). Therefore, this information is N/A (not available). 5Previous abundance estimates covering the entire stock’s range are no longer considered reliable and the current estimates presented in the SARs and reported 

here only cover a portion of the stock’s range. Therefore, the calculated Nmin and PBR is based on the 2015 survey of only a small portion of the stock’s range. PBR 

is considered to be biased low since it is based on the whole stock whereas the estimate of mortality and serious injury is for the entire stock’s range. 

A detailed description of the species 

likely to be affected by the Coast 

Guard’s programmatic maintenance 

project, including brief introductions to 

the species and relevant stocks, as well 

as available information regarding 

population trends and threats, and 

information regarding local occurrence, 

were provided in the proposed rule (88 

FR 26432, April 28, 2023). With the 

exception of humpback whale and 

harbor porpoise, NMFS is not aware of 

any changes in the status of these 

species and stocks; therefore, detailed 

descriptions are not provided here. 

Please refer to the proposed rule (88 FR 

26432, April 28, 2023) for these 

descriptions. Please also refer to NMFS’ 

website (https://

www.fisheries.noaa.gov/find-species) for 

generalized species accounts. 

The 2022 Alaska and Pacific SARs 

described a revised stock structure for 

humpback whales which modifies the 

previous stocks designated under the 

MMPA to align more closely with the 

ESA-designated DPSs (Caretta et al., 

2023; Young et al., 2023). Specifically, 

the three previous North Pacific 

humpback whale stocks (Central and 

Western North Pacific stocks and a CA/ 

OR/WA stock) were replaced by five 

stocks, largely corresponding with the 

ESA-designated DPSs. These include 

Western North Pacific and Hawai’i 

stocks and a Central America/Southern 

Mexico-CA/OR/WA stock (which 

corresponds with the Central America 

DPS). The remaining two stocks, 

corresponding with the Mexico DPS, are 

the Mainland Mexico-CA/OR/WA and 

Mexico-North Pacific stocks (Caretta et 

al., 2023; Young et al., 2023). The 

former stock is expected to occur along 

the west coast from California to 

southern British Columbia, while the 

latter stock may occur across the Pacific, 

from northern British Columbia through 

the Gulf of Alaska and Aleutian Islands/ 

Bering Sea region to Russia. 

In the proposed rule, NMFS stated 

that the Central North Pacific stock of 

humpback whale was likely to be 

impacted by USCG’s activities. Given 

the final revised stock structure, NMFS 

has reanalyzed the potential for take of 

each stock of humpback whale and 

determined that the Hawai’i stock and 

the Mexico-North Pacific stock are 

likely to be impacted by USCG’s 

activities. 

The 2022 Alaska SARs described a 

revised stock structure for southeast 

Alaska harbor porpoise, which were 

split from one stock into three: the 

Northern Southeast Alaska Inland 

Waters, Southern Southeast Alaska 

Inland Waters, and Yakutat/Southeast 

Alaska Offshore Waters harbor porpoise 

stocks (Young et al., 2023). This update 

better aligns harbor porpoise stock 

structure with genetics, trends in 

abundance, and information regarding 

discontinuous distribution trends 

(Young et al., 2023). Harbor porpoises 

found near Sitka are assumed to be 

members of the Yakutat/Southeast 

Alaska Offshore Waters stock. Harbor 

porpoises found near Juneau are 

assumed to be members of the Northern 

Southeast Alaska Inland Waters stock, 

while those found near Ketchikan are 

assumed to be members of the Southern 

Southeast Alaska Inland Waters stock, 

based on the geographical range of the 

stocks. The dividing line between the 

Northern and Southern Southeast 

Alaska Inland Waters Stocks is very 

close to Petersburg; therefore harbor 

porpoises at this location are assumed to 

be from both stocks in equal 

proportions. Please refer to the proposed 

rule (88 FR 26432, April 28, 2023) for 

species descriptions. Please also refer to 

the NMFS’ website (https://

www.fisheries.noaa.gov/find-species) for 

generalized species accounts, and to the 

SARs (https://www.fisheries.noaa.gov/ 

national/marine-mammal-protection/ 

marine-mammal-stock-assessments) for 

more information about the changes to 

humpback whale and harbor porpoise 

stock structures. 

Marine Mammal Hearing 

Hearing is the most important sensory 

modality for marine mammals 

underwater, and exposure to 

anthropogenic sound can have 

deleterious effects. To appropriately 

assess the potential effects of exposure 

to sound, it is necessary to understand 

the frequency ranges marine mammals 

are able to hear. Current data indicate 

that not all marine mammal species 

have equal hearing capabilities (e.g., 

Richardson et al., 1995; Wartzok and 

Ketten, 1999; Au and Hastings, 2008). 

To reflect this, Southall et al. (2007) 

recommended that marine mammals be 

divided into functional hearing groups 

based on directly measured or estimated 

hearing ranges on the basis of available 


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behavioral response data, audiograms 

derived using auditory evoked potential 

techniques, anatomical modeling, and 

other data. Note that no direct 

measurements of hearing ability have 

been successfully completed for 

mysticetes (i.e., low-frequency 

cetaceans). Subsequently, NMFS (2016) 

described generalized hearing ranges for 

these marine mammal hearing groups. 

Generalized hearing ranges were chosen 

based on the approximately 65-decibel 

(dB) threshold from the normalized 

composite audiograms, with an 

exception for lower limits for lowfrequency cetaceans where the result 

was deemed to be biologically 

implausible and the lower bound from 

Southall et al. (2007) retained. Marine 

mammal hearing groups and their 

associated hearing ranges are provided 

in table 2. 

TABLE 2—MARINE MAMMAL HEARING GROUPS

[NMFS, 2018] 

Hearing group Generalized 

hearing range * 

Low-frequency (LF) cetaceans (baleen whales) ..................................................................................................................... 7 Hz to 35 kHz. 

Mid-frequency (MF) cetaceans (dolphins, toothed whales, beaked whales, bottlenose whales) ........................................... 150 Hz to 160 kHz. 

High-frequency (HF) cetaceans (true porpoises, Kogia, river dolphins, cephalorhynchid, Lagenorhynchus cruciger & L. 

australis).

275 Hz to 160 kHz. 

Phocid pinnipeds (PW) (underwater) (true seals) ................................................................................................................... 50 Hz to 86 kHz. 

Otariid pinnipeds (OW) (underwater) (sea lions and fur seals) .............................................................................................. 60 Hz to 39 kHz. 

* Represents the generalized hearing range for the entire group as a composite (i.e., all species within the group), where individual species’ 

hearing ranges are typically not as broad. Generalized hearing range chosen based on ∼65 dB threshold from normalized composite audiogram, 

with the exception for lower limits for LF cetaceans (Southall et al., 2007) and PW pinniped (approximation). 

The pinniped functional hearing 

group was modified from Southall et al. 

(2007) on the basis of data indicating 

that phocid species have consistently 

demonstrated an extended frequency 

range of hearing compared to otariids, 

especially in the higher frequency range 

(Hemila ̈ et al., 2006; Kastelein et al., 

2009; Reichmuth and Holt, 2013). This 

division between phocid and otariid 

pinnipeds is now reflected in the 

updated hearing groups proposed in 

Southall et al. (2019). 

For more detail concerning these 

groups and associated generalized 

hearing ranges, please see the Technical 

Guidance for Assessing the Effects of 

Anthropogenic Sound on Marine 

Mammal Hearing (NMFS, 2018; https:// 

www.fisheries.noaa.gov/national/ 

marine-mammal-protection/marinemammal-acoustic-technical-guidance) 

for a review of available information. 

Potential Effects of the Specified 

Activity on Marine Mammals and Their 

Habitat 

This section includes a summary and 

discussion of the ways that components 

of the specified activity may impact 

marine mammals and their habitat. The 

Estimated Take section later in this 

document includes a quantitative 

analysis of the number of individuals 

that are expected to be taken by this 

activity. The Negligible Impact Analysis 

and Determination section considers the 

content of this section, the Estimated 

Take section, and the Mitigation section, 

to draw conclusions regarding the likely 

impacts of these activities on the 

reproductive success or survivorship of 

individuals and how those impacts on 

individuals are likely to impact marine 

mammal species or stocks. 

The effects of underwater noise from 

Coast Guard’s construction activities 

have the potential to result in behavioral 

harassment of marine mammals in the 

vicinity of the survey area. The 

proposed rule (88 FR 26432, April 28, 

2023) included a discussion of the 

effects of anthropogenic noise on marine 

mammals and the potential effects of 

underwater noise from pile installation 

and extraction on marine mammals and 

their habitat. That information and 

analysis is not repeated here; please 

refer to the proposed rule (88 FR 26432, 

April 28, 2023). 

Estimated Take 

This section provides an estimate of 

the number of incidental takes for 

authorization, which will inform both 

NMFS’ consideration of ‘‘small 

numbers’’ and the negligible impact 

determination. 

Harassment is the only type of take 

expected to result from these activities. 

Except with respect to certain activities 

not pertinent here, section 3(18) of the 

MMPA defines ‘‘harassment’’ as: any act 

of pursuit, torment, or annoyance which 

(i) has the potential to injure a marine 

mammal or marine mammal stock in the 

wild (Level A harassment); or (ii) has 

the potential to disturb a marine 

mammal or marine mammal stock in the 

wild by causing disruption of behavioral 

patterns, including, but not limited to, 

migration, breathing, nursing, breeding, 

feeding, or sheltering (Level B 

harassment). 

Authorized takes would be by Level A 

or Level B harassment only, in the form 

of disruption of behavioral patterns for 

individual marine mammals resulting 

from exposure to the acoustic sources. 

Based on the nature of the activity, no 

serious injury or mortality is anticipated 

or authorized for this activity. Below we 

describe how the take is estimated. 

Generally speaking, we estimate take 

by considering: (1) acoustic thresholds 

above which NMFS believes the best 

available science indicates marine 

mammals will be behaviorally harassed 

or incur some degree of permanent 

hearing impairment; (2) the area or 

volume of water that will be ensonified 

above these levels in a day; (3) the 

density or occurrence of marine 

mammals within these ensonified areas; 

and, (4) and the number of days of 

activities. We note that while these 

basic factors can contribute to a basic 

calculation to provide an initial 

prediction of takes, additional 

information that can qualitatively 

inform take estimates is also sometimes 

available (e.g., previous monitoring 

results or average group size). Below, we 

describe the factors considered here in 

more detail and present the take 

estimate. 

Acoustic Thresholds 

NMFS recommends the use of 

acoustic thresholds that identify the 

received level of underwater sound 

above which exposed marine mammals 

would be reasonably expected to be 

behaviorally harassed (equated to Level 

B harassment) or to incur permanent 

threshold shift (PTS) of some degree 

(equated to Level A harassment). 

Level B Harassment—Though 

significantly driven by received level, 

the onset of behavioral disturbance from 

anthropogenic noise exposure is also 


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informed to varying degrees by other 

factors related to the source (e.g., 

frequency, predictability, duty cycle), 

the environment (e.g., bathymetry), and 

the receiving animals (hearing, 

motivation, experience, demography, 

behavioral context) and can be difficult 

to predict (Southall et al., 2007, Ellison 

et al., 2012). Based on what the 

available science indicates and the 

practical need to use a threshold based 

on a factor that is both predictable and 

measurable for most activities, NMFS 

uses a generalized acoustic threshold 

based on received level to estimate the 

onset of behavioral harassment. NMFS 

predicts that marine mammals are likely 

to be behaviorally harassed in a manner 

we consider Level B harassment when 

exposed to underwater anthropogenic 

noise above received levels of 120 dB 

referenced to 1 micropascal (re 1 mPa) 

root mean square (rms) for continuous 

(e.g., vibratory pile-driving, DTH) and 

above 160 dB re 1 mPa (rms) for nonexplosive impulsive, intermittent (e.g., 

impact driving, DTH) sources. 

The Coast Guard’s planned activity 

includes the use of continuous 

(vibratory, DTH) and impulsive (impact 

pile driving and DTH) sources, and 

therefore the 120 and 160 dB re 1 mPa 

(rms) thresholds, respectively, are 

applicable. 

Level A harassment for non-explosive 

sources—NMFS’ Technical Guidance 

for Assessing the Effects of 

Anthropogenic Sound on Marine 

Mammal Hearing (Version 2.0) 

(Technical Guidance, 2018) identifies 

dual criteria to assess auditory injury 

(Level A harassment) to five different 

marine mammal groups (based on 

hearing sensitivity) as a result of 

exposure to noise from two different 

types of sources (impulsive or nonimpulsive). The Coast Guard’s planned 

activity includes the use of impulsive 

(impact pile driving and DTH) and nonimpulsive (vibratory, DTH) sources. 

These thresholds are provided in the 

table below. The references, analysis, 

and methodology used in the 

development of the thresholds are 

described in NMFS 2018 Technical 

Guidance, which may be accessed at 

https://www.fisheries.noaa.gov/ 

national/marine-mammal-protection/ 

marine-mammal-acoustic-technicalguidance. 

TABLE 3—THRESHOLDS IDENTIFYING THE ONSET OF PERMANENT THRESHOLD SHIFT

Hearing group 

PTS onset acoustic thresholds * 

(received level) 

Impulsive Non-impulsive 

Low-Frequency (LF) Cetaceans ...................................... Cell 1: Lpk,flat: 219 dB; LE,LF,24h: 183 dB ......................... Cell 2: LE,LF,24h: 199 dB. 

Mid-Frequency (MF) Cetaceans ...................................... Cell 3: Lpk,flat: 230 dB; LE,MF,24h: 185 dB ........................ Cell 4: LE,MF,24h: 198 dB. 

High-Frequency (HF) Cetaceans ..................................... Cell 5: Lpk,flat: 202 dB; LE,HF,24h: 155 dB ........................ Cell 6: LE,HF,24h: 173 dB. 

Phocid Pinnipeds (PW) (Underwater) ............................. Cell 7: Lpk,flat: 218 dB; LE,PW,24h: 185 dB ....................... Cell 8: LE,PW,24h: 201 dB. 

Otariid Pinnipeds (OW) (Underwater) ............................. Cell 9: Lpk,flat: 232 dB; LE,OW,24h: 203 dB ....................... Cell 10: LE,OW,24h: 219 dB. 

* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level thresholds associated with impulsive sounds, these thresholds should 

also be considered. 

Note: Peak sound pressure (Lpk) has a reference value of 1 μPa, and cumulative sound exposure level (LE) has a reference value of 1μPa2s. 

In this table, thresholds are abbreviated to reflect American National Standards Institute standards (ANSI 2013). However, peak sound pressure 

is defined by ANSI as incorporating frequency weighting, which is not the intent for the Technical Guidance. Hence, the subscript ‘‘flat’’ is being 

included to indicate peak sound pressure should be flat weighted or unweighted within the generalized hearing range. The subscript associated 

with cumulative sound exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF, and HF 

cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 24 hours. The cumulative sound exposure level 

thresholds could be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it is valuable for 

action proponents to indicate the conditions under which these acoustic thresholds will be exceeded. 

Ensonified Area 

Here, we describe operational and 

environmental parameters of the activity 

that will feed into estimating the area 

ensonified above the acoustic 

thresholds, which include source levels 

and transmission loss coefficient. 

The sound field in the project area is 

the existing background noise plus 

additional construction noise from the 

project. Marine mammals are expected 

to be affected via sound generated by 

the primary components of the project 

(i.e., impact pile driving, vibratory pile 

driving, vibratory pile removal, and 

DTH). 

The actual durations of each 

installation method vary depending on 

the type and size of the pile. In order to 

calculate distances to the Level A 

harassment and Level B harassment 

sound thresholds for piles of various 

sizes and equipment being used in this 

project, NMFS used acoustic monitoring 

data from other locations to develop 

source levels (table 4). Note that piles 

and holes of differing sizes have 

different sound source levels (SSL). For 

simplicity and to be precautionary we 

analyze the largest pile diameter of each 

type (e.g., 24-inch (0.61 m) diameter) 

even though it is possible at some 

locations in some situations smaller pile 

diameters may be used or be removed. 

TABLE 4—SOUND SOURCE LEVELS

Method and pile type 

Sound source level 

at 10 meters 

(dB) 

Literature source 

Timber Vibratory ............................................................... 152 RMS .......................................................................... Greenbusch Group 2018. 

24-inch Steel Pipe Vibratory ............................................ 162 RMS .......................................................................... Laughlin 2010. 

Timber Impact .................................................................. 170 RMS, 160 SEL, 180 Pk ............................................ CALTRANS 2015. 

Composite impact ............................................................. 153 RMS, 145 SEL .......................................................... CALTRANS 2020. 

24-inch Steel Pipe Impact ................................................ 190 RMS, 177 SEL, 203 Pk ............................................ CALTRANS 2015. 

24-inch Concrete Impact .................................................. 170 RMS, 159 SEL, 184 Pk ............................................ WSDOT 2007. 

DTH Non-impulsive component ....................................... 167 RMS .......................................................................... Heyvaert & Reyff 2021. 


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TABLE 4—SOUND SOURCE LEVELS—Continued 

Method and pile type 

Sound source level 

at 10 meters 

(dB) 

Literature source 

24-inch DTH Impulsive component .................................. 159 SEL, 184 dB Pk ........................................................ Heyvaert & Reyff 2021. 

Note: It is assumed that noise levels during pile installation and removal are similar. SEL = single strike sound exposure level; Pk = peak 

sound level; RMS = root mean square. 

Level B Harassment Zones 

Transmission loss (TL) is the decrease 

in acoustic intensity as an acoustic 

pressure wave propagates out from a 

source. TL parameters vary with 

frequency, temperature, sea conditions, 

current, source and receiver depth, 

water depth, water chemistry, and 

bottom composition and topography. 

The general formula for underwater TL 

is: 

TL = B × Log10 (R1/R2), 

Where 

TL = transmission loss in dB 

B = transmission loss coefficient; for practical 

spreading equals 15 

R1 = the distance of the modeled SPL from 

the driven pile, and 

R2 = the distance from the driven pile of the 

initial measurement 

The recommended TL coefficient for 

most nearshore environments is the 

practical spreading value of 15. This 

value results in an expected propagation 

environment that would lie between 

spherical and cylindrical spreading loss 

conditions, which is the most 

appropriate assumption for the Coast 

Guard’s planned activity. 

Using the practical spreading model, 

the Coast Guard determined underwater 

noise would fall below the behavioral 

effects thresholds of 120 dB rms or 160 

dB rms for marine mammals at a 

maximum radial distances from 46 m 

for impact driving of timber or concrete 

piles to 13,594 m for DTH (table 5). 

These distances determine the 

maximum Level B harassment zones for 

the project. It should be noted that, 

based on the geography of many of the 

sites, sound will not reach the full 

distance of the Level B harassment 

isopleth. Generally, due to interaction 

with land, only a portion of the possible 

area is ensonified. 

TABLE 5—CALCULATED DISTANCES TO LEVEL B HARASSMENT ISOPLETHS

Method and pile type Level B isopleth 

(m) 

Timber Vibratory .......................................................................................................................................................................... 1,359 

24-inch Steel Pipe Vibratory ........................................................................................................................................................ 6,310 

Timber Impact .............................................................................................................................................................................. 46 

Composite Impact ........................................................................................................................................................................ 3 

24-inch Steel Pipe Impact ........................................................................................................................................................... 1,000 

24-inch Concrete Impact ............................................................................................................................................................. 46 

DTH .............................................................................................................................................................................................. 13,594 

Level A Harassment Zones 

When the NMFS Technical Guidance 

(2016) was published, in recognition of 

the fact that ensonified area/volume 

could be more technically challenging 

to predict because of the duration 

component in the new thresholds, we 

developed a User Spreadsheet that 

includes tools to help predict a simple 

isopleth that can be used in conjunction 

with marine mammal density or 

occurrence to help predict takes. We 

note that, because of some of the 

assumptions included in the methods 

used for these tools, we anticipate that 

isopleths produced are typically going 

to be overestimates of some degree, 

which may result in some degree of 

overestimate of take by Level A 

harassment. However, these tools offer 

the best way to predict appropriate 

isopleths when more sophisticated three 

dimensional modeling methods are not 

available, and NMFS continues to 

develop ways to quantitatively refine 

these tools, and will qualitatively 

address the output where appropriate. 

For stationary sources such as pile 

driving or DTH, NMFS User 

Spreadsheet predicts the closest 

distance at which, if a marine mammal 

remained at that distance the whole 

duration of the activity, it would not 

incur PTS. 

Inputs used in the User Spreadsheet 

(table 6), and the resulting isopleths are 

reported below (table 7). We analyzed 

scenarios with up to five piles per day 

to account for maximum possible 

production rates. Level A harassment 

thresholds for impulsive sound sources 

(impact pile driving and DTH) are 

defined for both the cumulative sound 

exposure level (SELcum) and Peak sound 

pressure level (SPL), with the threshold 

that results in the largest modeled 

isopleth for each marine mammal 

hearing group used to establish the 

Level A harassment isopleth. In this 

analysis, Level A harassment isopleths 

based on SELcum were always larger than 

those based on Peak SPL. 

TABLE 6—INPUTS OF PILE DRIVING AND DTH ACTIVITY USED IN USER SPREADSHEET

Method and pile type 

Weighting 

factor 

adjustment 

Duration 

(minutes) 

or strikes 

per pile 

Piles 

per day 

Timber Vibratory .......................................................................................................................... 2.5 50 5 

24-inch Steel Pipe Vibratory ........................................................................................................ 2.5 10 5 


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TABLE 6—INPUTS OF PILE DRIVING AND DTH ACTIVITY USED IN USER SPREADSHEET—Continued 

Method and pile type 

Weighting 

factor 

adjustment 

Duration 

(minutes) 

or strikes 

per pile 

Piles 

per day 

Timber Impact .............................................................................................................................. 2 100 5 

Composite Impact ........................................................................................................................ 2 120 5 

24-inch Steel Pipe Impact ........................................................................................................... 2 400 1 

24-inch Concrete Impact ............................................................................................................. 2 184 5 

24-inch DTH ................................................................................................................................. 2 60 2 

Note: Data for all equipment types were for transmission loss of 15*log(r) and distance of source level measurements was 10 meters. 

The above input scenarios lead to a 

Level A harassment isopleth of 0 to 

517.1 m, depending on the marine 

mammal hearing group and scenario 

(table 7). 

TABLE 7—CALCULATED DISTANCES TO LEVEL A HARASSMENT ISOPLETHS (m) DURING PILE INSTALLATION AND REMOVAL

FOR EACH HEARING GROUP

Method and pile type Low 

frequency 

Mid 

frequency 

High 

frequency Phocid Otariid 

Timber Vibratory .......................................................................... 1.5 0.1 2.2 0.9 0.1 

24-inch Steel Pipe Vibratory ........................................................ 7.1 0.6 10.4 4.3 0.3 

Timber Impact .............................................................................. 18.4 0.7 21.9 9.9 0.7 

Composite Impact ........................................................................ 2.1 0.1 2.5 1.1 0.1 

24-inch Steel Pipe Impact ............................................................ 215.8 7.7 257.1 115.5 8.4 

24-inch Concrete Impact .............................................................. 27.7 1 33.0 14.8 1.1 

24-inch DTH ................................................................................. 434.1 15.4 517.1 232.2 16.9 

Note: a minimum 20-m shutdown zone, as proposed by the Coast Guard, will be implemented for all species and activity types to prevent direct injury of marine mammals. 

Marine Mammal Occurrence and Take 

Calculation and Estimation 

In this section we provide the 

information about the presence, density, 

or group dynamics of marine mammals 

that will inform the take calculations. 

Here we describe how the information 

provided above is brought together to 

produce a quantitative take estimate. 

Available information regarding 

marine mammal occurrence and 

abundance in the vicinity of the eight 

facilities includes monitoring data from 

the NMFS Alaska Regional Office, prior 

incidental take authorizations, and ESA 

consultations on additional projects 

(table 8). When local density 

information is not available, data 

aggregated in the Navy’s Marine 

Mammal Species Density Database (U.S. 

Navy, 2019, 2020) for the Gulf of Alaska 

or Northwest Testing and Training areas 

(table 9) or nearby proxies from the 

monitoring data are used; whichever 

gives the most precautionary take 

estimate was chosen. 


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TABLE 9—MARINE MAMMAL DENSITIES FROM NAVY DATA

Stock 

Southeast Alaska 

facilities 

species density 

(#/km2) 123

Gulf of Alaska/ 

Prince William Sound 

facilities species 

density 

(#/km2) 345

Gray whale ....................................................................................................................................... 0.016 0.048 

Humpback whale Hawai1i 6 .............................................................................................................. 0.002 0.093 

Humpback Whale Mexico–North Pacific 6 7 ..................................................................................... N/A 0.093 

Fin whale ......................................................................................................................................... 0.0001 0.068 

Minke whale ..................................................................................................................................... 0.001 0.006 

Killer whale (General) ...................................................................................................................... N/A 0.005 

Killer whale Resident ....................................................................................................................... 0.035 N/A 

Killer whale Transient ...................................................................................................................... 0.006 N/A 

Pacific white-sided dolphin .............................................................................................................. 0.085 0.020 

Dall’s porpoise ................................................................................................................................. 0.121 0.218 

Harbor porpoise 6 ............................................................................................................................. 0.010 0.455 

California sea lion 8 .......................................................................................................................... 0.025 0 


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Table 8 -- Marine Mammal Occurrence Data (per day) from Prior Projects 

Project Location 

Stock § 

.!<I 

. ..., "O g N .= Cli 1il V 0 V "O ..... ~ ~ V V ] -Cli 

~ VJ VJ > 

Gray whale 0.067 0.1 NA NA NA 

Humpback whale 0.571 5 1 4 NA 

Minke whale 0.024 1 NA NA 0.25 

Killer whale 0.4 8 NA NA NA 

Pacific white-sided dolphin 2.86 NA NA NA NA 

Dall's porpoise 2 NA 0.25 NA NA 

Harbor porpoise 0.5 5 NA NA NA 

California sea lion NA 1 NA NA NA 

Steller sea lion Eastern 10 15.6 NA NA NA 

Steller sea lion Western NA 0.4 2 NA 4.2 

Harbor seal Prince William Sound NA NA NA NA 48.95 

Harbor seal Lynn Canal/Stephens Passage NA NA NA 43 NA 

Harbor seal Sitka/Chatham Straight NA 23 NA NA NA 

Harbor seal Clarence Strait 12 NA NA NA NA 

Note: NA indicates that occurrence data was not used for that species and site combination. Density data 

for species/site combinations listed as NA in this table are shown in table 12. 

~ 

:e 

0 

~ 

NA 

NA 

NA 

NA 

NA 

NA 

NA 

NA 

NA 

0.083 

NA 

NA 

NA 

NA 
87946 Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Rules and Regulations 

TABLE 9—MARINE MAMMAL DENSITIES FROM NAVY DATA—Continued 

Stock 

Southeast Alaska 

facilities 

species density 

(#/km2) 123

Gulf of Alaska/ 

Prince William Sound 

facilities species 

density 

(#/km2) 345

Northern fur seal .............................................................................................................................. 0.276 0.090 

Steller sea lion ................................................................................................................................. 0.316 0.068 

Harbor seal ...................................................................................................................................... 1.727 0.169 

1Facilities including Ketchikan, Sitka, Juneau, and Petersburg. 

2Southeast Alaska density values generally from Western Behm Canal values reported in U.S. Navy (2020). 

3Where species density values reported in the U.S. Navy (2020) and U.S. Navy (2021) vary by time of year, the greatest value is presented 

here as a conservative estimate. 4Facilities including Kodiak, Seward, Valdez, and Cordova. 

5Gulf of Alaska/Prince William Sound species density values generally from inshore or within the 500–1000 m isobath values reported in U.S. 

Navy (2021). 6 New stock designations for humpback whales and harbor porpoise were finalized in July 2023 (2022 SARs). The density values listed correspond to the stock alignments in the 2021 and previous SARs. 7The range for the Western North Pacific stock of humpback whales from the 2021 and previous SARs did not extend to Southeast Alaska. 8 U.S. Navy 2020 density values for California sea lion do not include Western Behm Canal and the value used here is from the San Juan Islands, the next closest zone to the project area where a density value is available. 

The data on abundance and 

occurrence from prior projects is 

derived from the following projects: (1) 

Kodiak—Protected Species Observer 

(PSO) monitoring reports from dock 

repair projects in 2018 and 2020 (NMFS 

Alaska Region); (2) Sitka—Data are from 

the Old Sitka Dock project (86 FR 

22392, April 28, 2021); (3) Ketchikan— 

Data are from the Tongass Narrows 

project (85 FR 673, January 7, 2020) and 

other projects in preparation in the area; 

(4) Valdez—Data are from monitoring 

for an oil spill response in late April 

and early May 2020 (NMFS Alaska 

Region); (5) Juneau—Data are from the 

Erickson Dock project (84 FR 65360, 

November 27, 2019) and the Juneau 

Waterfront Improvement Project (85 FR 

18562, April 2, 2020); and, (6) Seward— 

An incidental harassment authorization 

application for the Seward Passenger 

Terminal project recently received by 

NMFS included information resulting 

from consultation with the Alaska 

SeaLife Center, the Kenai Fjords 

National Park Service, local whale 

watching companies, and scientific 

literature to estimate the occurrence of 

marine mammals in Seward. 

To quantitatively assess exposure of 

marine mammals to noise from pile 

driving and drilling activities when 

density estimates are most appropriate, 

we used the density estimate and the 

annual anticipated number of work days 

for each activity at each facility to 

determine the number of animals 

potentially harassed on any one day of 

activity. The calculation is: 

Exposure estimate = density × 

harassment area × maximum days 

of activity 

For example, exposure estimates at 

the Ketchikan site for gray whales were 

calculated by first finding the product of 

the SE Alaska species density (0.0155 

animals/km2), the ensonified area for 

the activity (e.g., 1.45 km2 for vibratory 

pile driving of timber piles), for the 

anticipated number of days for that 

activity each year (10 days/year). After 

finding the product for each activity for 

each year, the values were summed to 

find the total number of takes for that 

species across all 5 years. This method 

was used for all species for which local 

occurrence data were not available. 

When occurrence data from prior 

projects are the most appropriate data 

for exposure estimation, we used the 

occurrence estimate (number/unit of 

time) and the maximum work days 

(converted to the appropriate unit of 

time as needed) per year at each facility 

to determine the number of animals 

potentially exposed to an activity. The 

calculation is: 

Exposure estimate = occurrence/time × 

time of activity 

and these values are then summed 

across activity/pile types. 

When exposure estimates from 

density data are used for sites with no 

local occurrence data and the exposure 

estimate is less than a typical group 

size, we increase the estimated take 

based on that group size to account for 

the possibility a single group entering 

the project area would exceed 

authorized take. Table 10 shows the 

source of data used in exposure 

estimates. 

The size of the Level B harassment 

zones for each facility and activity are 

in table 11. Level A harassment take is 

only authorized for the activities 

creating the largest Level A harassment 

zones: DTH and impact driving of steel 

pipe piles (see Figures 6–2 through 

Figure 6–9 in the Coast Guard’s 

application), and for species that would 

be difficult for observers to detect 

within large, unconfined zones: high 

frequency cetaceans and phocid 

pinnipeds. The topography of sites and 

facilities in Seward, Juneau, Sitka, and 

Petersburg are restricted such that noise 

would be confined to a small area or 

basin, and PSOs would be able to 

observe any marine mammals 

approaching the activity are and Level 

A shutdown zone with enough warning 

that work could be stopped before a take 

by Level A harassment would occur. 

The facilities at the remaining four sites 

(Kodiak, Ketchikan, Valdez, and 

Cordova) are less confined, and PSOs 

may be unable to observe cryptic 

species at the calculated isopleths. 

Therefore, we have conservatively 

authorized small numbers of take by 

Level A harassment for high frequency 

cetaceans and phocid pinnipeds at these 

sites. 


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Table 10 -- Source of Data Used to Estimate Exposure for Each Species or Stock and 

Facility 

§ o:s 

Species/Stock ~ ~ "C N > 

..c; !a (I) 0 ~ :e o:s u "C "C (I) 

~ .... ~ ca .... ] 0 (I) (I) 0 

~ VJ_ ~ VJ_ > u 

Gray whale N Sit Ke * * * * 

ff 

,D 

"' .... 

(I) 

.... 

(I) 

i:i, 

* 

Humpback whale N Sit Ke Sew V N J N 

Fin whale * * * * N N * 

Minke whale N Sit Ke N V N Ke 

Killer whale N Sit Ke G N G Ke 

Pacific white-sided dolphin N Ke Ke G G G Ke 

Dall's porpoise N N Ke Sew N N Ke 

Harbor porpoise Northern Southeast Alaska * * * * * * Ke Inland Waters 

Harbor porpoise Southern Southeast Alaska * * Ke * * * * Inland Waters 

Harbor porpoise Yakutat/Southeast Alaska * Sit * * * * * Offshore Waters 

Harbor porpoise Gulf of Alaska N * * N N N * 

California sea lion * Sit * * * * N 

Northern fur seal N N * G N N * 

Steller sea lion Ko Sit Ke Sew V N N 

Harbor seal Prince William Sound * * * V V V * 

Harbor seal Lynn Canal/Stephens Passage * * * * * * J 

Harbor seal Sitka/Chatham Straight * Sit * * * * * 

Harbor seal Clarence Strait * * Ke * * * * 

Harbor seal South Kodiak N * * * * * * 

Abbreviations for source data are: N - Navy density data, Ke - Ketchikan, Sit- Sitka, Sew - Seward, J -

Juneau, V - Valdez, Ko -Kodiak, G- estimate rounded up to 1 group,* - Not Applicable (no take). 

* 

Ke 

Ke 

Ke 

Ke 

Ke 

Ke 

* 

* 

* 

* 

Sit 

* 

* 

* 

J 

* 
87948 Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Rules and Regulations 

TABLE 11—LEVEL B HARASSMENT AREAS AT EACH FACILITY (km2) FOR EACH METHOD AND/OR PILE TYPE

Facility Timber 

vibratory 

Steel 

vibratory 

Timber 

impact 

Composite 1

impact 

Steel 

impact DTH 

Kodiak .................................................................................................. 1.3 4.51 0.006 0 1.03 4.51 

Sitka ..................................................................................................... 0.87 5.67 0.007 0 0.56 ..............

Ketchikan ............................................................................................. 1.45 7.29 0.004 0 1.06 10.1 

Valdez .................................................................................................. 2.62 40.21 0.007 0 1.43 ..............

Cordova ................................................................................................ .................. 23.42 .............. ...................... 1.57 ..............

Juneau ................................................................................................. 1.62 NA 0.003 0 NA ..............

Petersburg ............................................................................................ 1.63 2.89 0.006 0 1.33 ..............

Seward ................................................................................................. .................. 0.24 .............. ...................... 0.24 ..............

1 Composite Level B harassment zone (3 m) is completely encompassed by the 20 m shutdown zone proposed by Coast Guard. 

The calculated Level B harassment 

takes using the above data for each year 

are in table 12 and for each facility over 

the course of the project are in table 13. 

See tables 6–14 through 6–21 in the 

application and the supplemental memo 

(composite piles) for detailed 

calculations of estimated take for each 

pile type and activity at each facility. 

The calculated Level A harassment 

takes using the above data for each year 

are in table 14 and for each facility over 

the course of the five years of the rule 

are in table 15. 

Table 16 summarizes Level A and 

Level B harassment take authorized for 

the project as well as the percentage of 

each stock expected to be taken in the 

year with the maximum annual takes 

over the course of the project. 

TABLE 12—LEVEL B HARASSMENT TAKE IN EACH OF THE FIVE YEARS AND IN TOTAL

Stock Year 1 Year 2 Year 3 Year 4 Year 5 Total 

Gray whale ................................................................................................................... 8 8 8 8 8 40 

Humpback whale * ....................................................................................................... 160 174 164 160 160 818 

Fin whale ...................................................................................................................... 13 23 13 13 13 75 

Minke whale ................................................................................................................. 5 6 5 5 5 a 26 

Killer whale * ................................................................................................................. 103 b d 127 b c 107 103 103 bcd 543 

Pacific white-sided dolphin .......................................................................................... 215 b 233 c 227 215 215 c d 1,105 

Dall’s porpoise ............................................................................................................. 114 147 115 114 114 604 

Harbor porpoise Northern Southeast Alaska Inland Waters ....................................... 11 11 11 11 11 55 

Harbor Porpoise Southern Southeast Alaska Inland Waters ...................................... 11 11 11 11 11 55 

Harbor porpoise Yakutat/Southeast Alaska Offshore Waters ..................................... 50 50 50 50 50 250 

Harbor porpoise Gulf of Alaska ................................................................................... 47 115 48 47 47 304 

California sea lion ........................................................................................................ 10 10 10 10 10 50 

Northern fur seal .......................................................................................................... 9 23 d 21 9 9 d 71 

Steller sea lion Eastern ................................................................................................ 425 425 425 425 425 2,125 

Steller sea lion Western ............................................................................................... 24 34 32 24 24 138 

Harbor seal Prince William Sound ............................................................................... 148 442 344 148 148 1,230 

Harbor seal Lynn Canal/Stephens Passage ............................................................... 860 860 860 860 860 4,300

Harbor seal Sitka/Chatham Straight ............................................................................ 230 230 230 230 230 1,150 

Harbor seal Clarence Strait ......................................................................................... 412 412 412 412 412 2,060 

Harbor seal South Kodiak ............................................................................................ 17 17 17 17 17 85 

* Stocks of killer whales and humpback whales cannot generally be identified in the field so total take is listed at species level only. 

a Corrected addition error from the proposed rule. 

bTotal number has changed from the proposed rule due to corrections of typographical errors in the proposed rule. 

cTypographical error in take levels at Cordova corrected from proposed rule. 

dTypographical error in take levels at Seward corrected from proposed rule. 


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Table 13 - Total (5-year) Estimated Level B Harassment Take for Each Facility 

§ ell 01) 

~ "C N @ 1-s 

> ;:::1 ell ~ !a Q) 0 .D :e ~ ..... "O Q) Species Stock .= ~ "O rfl 

0 u ca 1-.. ~ 1-s 

VJ ..... Q) 0 ~ Q) 

~ Q) VJ > ..... ~ u Q) 

0-.. 

Gray whale Eastern North 25 5 10 0 0 0 0 0 Pacific 

Humpback Hawai'ib 

whale Mexico -North 50 250 60 4 40 14 400 0 

Pacificc 

Fin whale Northeast 35 0 0 0 30 10 0 0 Pacific 

Minke Alaska 5 0 5 0 5 1 5 5 whale 

Killer Alaska 

whale Residentb 

Gulf of Alaska, 

Aleutian Islands, 

Bearing Sea 

Transientd 5 400 40 4h,i 20i 24h,i 40i l0i 

Northern 

Residente 

West Coast 

Transientf 

A Tl Transientg 

Pacific North Pacific 

white-sided 300 145 285 12h 0 18h 285 60 

dolphin 

Dall's Alaska 15 20 200 1 95 33 200 40 porpoise 

Northern 

Harbor Southeast oa oa oa oa oa oa 50 10 porpoise Alaska Inland 

Waten;.i 
87950 Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Rules and Regulations 

TABLE 14—ESTIMATED LEVEL A HARASSMENT TAKE IN EACH YEAR AND IN TOTAL

Species and stock Year 1 Year 2 Year 3 Year 4 Year 5 Total 

Dall’s porpoise Alaska ............................. 86 98 86 86 86 442 

Harbor porpoise Southern Southeast 

Alaska Inland Waters ........................... 20 20 20 20 20 100 

Harbor porpoise Gulf of Alaska ............... 55 85 55 55 55 305 

Harbor seal South Kodiak ........................ 20 20 20 20 20 100 

Harbor seal Clarence Strait ..................... 20 20 20 20 20 100 


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Southern 

Southeast oa oa 50 oa oa oa oa 

Alaska Inland 

Watersk 

Yakutat/ 

Southeast 0 250 oa oa oa oa oa oa 

Alaska Offshore 

Waters' 

Gulf of Alaskam 235 oa oa 1 0 68 oa oa 

California United States oa 50 0 oa oa oa 0 oa 

sea lion 

Northern Eastern Pacific 0 0 0 12h 40 14 5 oa 

fur seal 

Steller sea Eastern oa 780 1,000 oa oa oa 25 320 

lion Western 35 20 oa 8 65 10 oa oa 

Harbor seal Prince William oa oa oa 196 735 294 5 oa 

Sound 

Lynn 

Canal/Stephens oa oa oa oa oa oa 4,300 oa 

Passage 

Sitka/Chatham oa 1,150 oa oa oa oa oa oa 

Straight 

Clarence Strait oa oa 1,200 oa oa oa oa 860 

South Kodiak 85 oa oa oa oa oa oa oa 

a. Stock does not occur in this region, therefore no takes would be authorized (Muto et al., 2022) 

b. Stock range overlaps with all 8 locations(Muto et al., 2022, Young et al., 2023) 

c. Stock range overlaps with Kodiak, Seward, Valdez, and Cordova (Muto et al., 2021, Young et al., 2023) 

d. Stock range overlaps with Kodiak, Sitka, Seward, Valdez, Cordova (Muto et al., 2022) 

e. Stock range overlaps with Sitka, Ketchikan, Juneau, and Petersburg (Muto et al., 2022) 

f. Stock range overlaps with Seward, Valdez, and Cordova (Muto et al., 2022) 

g. No takes of the A Tl stock are expected or proposed for authorization. 

h. Typographical error from the proposed rule corrected. 

i. Corrected column order of values for killer whale from Seward to Petersburg from the proposed rule. 

j. Newly delineated stock range overlaps with Juneau and Petersburg (Young et al., 2023); stock overlaps with 

Southern Southeast Alaska Inland Waters stock at Petersburg; takes at this location are assumed to be 50% 

from each stock. 

k. Newly delineated stock range overlaps with Ketchikan and Petersburg (Young et al., 2023); stock overlaps 

with Northern Southeast Alaska Inland Waters stock at Petersburg; takes at this location are assumed to be 

50% from each stock. 

1. Newly delineated stock range overlaps with Sitka (Young et al., 2023). 

m. Stock range overlaps with Kodiak, Seward, and Cordova (Young et al., 2023). 
Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Rules and Regulations 87951 

TABLE 16—ESTIMATED LEVEL A AND LEVEL B HARASSMENT TAKE AND PERCENT OF STOCK FOR THE MAXIMUM ANNUAL

ESTIMATED TAKES OF THE PROJECT

Species and stock Level A Level B Total Percent 

of stock 

Gray whale Eastern North Pacific ................................................................................................... 0 8 8 0.03 

Humpback whale Hawai1i ................................................................................................................. 0 174 174 a 1.48 

Humpback whale Mexico-North Pacific ........................................................................................... a 0.76 

Fin whale Northeast Pacific ............................................................................................................. 0 23 23 N/A 

Minke whale Alaska ......................................................................................................................... 0 6 6 N/A 

Killer whale Alaska Resident ........................................................................................................... 0 c 127 127 a 4.55 

Killer whale Gulf of Alaska, Aleutian Islands, Bearing Sea Transient ............................................ a 3.85 

Killer whale Northern Resident ........................................................................................................ a 3.23 

Killer whale AT1 Transient b ............................................................................................................ a b 0 

Killer whale West Coast Transient .................................................................................................. a 3.23 

Pacific white-sided dolphin North Pacific ........................................................................................ 0 c 233 233 0.87 

Dall’s porpoise Alaska ..................................................................................................................... 98 147 245 N/A 

Harbor porpoise Northern Southeast Alaska Inland Waters ........................................................... 0 11 11 0.68 

Harbor porpoise Southern Southeast Alaska Inland Waters .......................................................... 20 11 31 3.48 

Harbor porpoise Yakutat/Southeast Alaska Offshore Waters ......................................................... 0 50 50 N/A 

Harbor porpoise Gulf of Alaska ....................................................................................................... 85 115 c 200 0.64 

California sea lion U.S ..................................................................................................................... 0 10 10 0.00 

Northern fur seal Eastern Pacific .................................................................................................... 0 c 23 23 0.00 

Steller sea lion Eastern ................................................................................................................... 0 425 425 0.98 

Steller sea lion Western .................................................................................................................. 0 34 34 0.06 

Harbor seal Prince William Sound .................................................................................................. 0 442 442 1.06 

Harbor seal Lynn Canal/Stephens Passage ................................................................................... 0 860 860 7.25 

Harbor seal Sitka/Chatham Straight ................................................................................................ 0 230 230 1.94 

Harbor seal Clarence Strait ............................................................................................................. 20 412 432 1.74 

Harbor seal South Kodiak ............................................................................................................... 20 17 37 0.17 

aPercent of stock impacted for humpback and killer whales was estimated assuming each stock is taken in proportion to its population size at 

any given facility site from the total take (e.g., for killer whales at Kodiak, the Alaska Resident and Gulf of Alaska stocks are the only stocks 

present. Of these, the Alaska Resident stock represents approximately 80 percent of the available animals, and GOA represents approximately 

20 percent, giving 4 total Alaska Resident killer whale takes over the 5 years, and 1 GOA killer whale take. This division was replicated for each 

site for all present stocks. Takes were then calculated for each site based on the proportional representation of available stocks. Total takes for 

each stock are shown as a percentage of the stock size.) bAT1 Transient killer whales have the potential to be present in the Seward, Valdez, and Cordova, however we do not expect any of the 

seven individuals to approach the project sites, therefore no take is expected to occur for this stock and none is authorized. c Corrected typographical error from the proposed rule. 

Mitigation 

Under Section 101(a)(5)(A) of the 

MMPA, NMFS must set forth the 

permissible methods of taking pursuant 

to such activity, and other means of 

effecting the least practicable adverse 

impact on such species or stock and its 

habitat, paying particular attention to 

rookeries, mating grounds, and areas of 

similar significance, and on the 

availability of such species or stock for 

taking for certain subsistence uses 

(‘‘least practicable adverse impact’’). 

NMFS does not have a regulatory 

definition for ‘‘least practicable adverse 

impact.’’ NMFS regulations require 

applicants for incidental take 

authorizations to include information 

about the availability and feasibility 

(economic and technological) of 

equipment, methods, and manner of 

conducting the activity or other means 

of effecting the least practicable adverse 

impact upon the affected species or 

stocks and their habitat (50 CFR 

216.104(a)(11)). 

In evaluating how mitigation may or 

may not be appropriate to ensure the 

least practicable adverse impact on 

species or stocks and their habitat, as 

well as subsistence uses where 

applicable, we carefully consider two 

primary factors: 

(1) The manner in which, and the 

degree to which, the successful 

implementation of the measure(s) is 

expected to reduce impacts to marine 

mammals, marine mammal species or 

stocks, and their habitat, as well as 


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T a e bl 15 - T t I oa (5 -year ·) E s f 1ma t d L e eve IAH arassmen t T k a e i or E h F ac ac11 'lit v 

'td § c,:S N ~ > Q) ..... ..... 0 "O Species and Stock "C .= "C 

0 u I-. ca ~ ..... 0 > Q) u ~ 

Dall's porpoise Alaska 200 200 12 30 

Harbor porpoise Southern Southeast Alaska 0 100 0 0 Inland Waters 

Harbor porpoise Gulf of Alaska 200 0 30 75 

Harbor seal South Kodiak 100 0 0 0 

Harbor seal Clarence Strait 0 100 0 0 
87952 Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Rules and Regulations 

subsistence uses. This considers the 

nature of the potential adverse impact 

being mitigated (likelihood, scope, 

range). It further considers the 

likelihood that the measure will be 

effective if implemented (probability of 

accomplishing the mitigating result if 

implemented as planned), and the 

likelihood of effective implementation 

(probability implemented as planned); 

and 

(2) The practicability of the measures 

for applicant implementation, which 

may consider such things as cost and 

impact on operations. 

The mitigation strategies described 

below largely follow those required and 

successfully implemented under 

previous incidental take authorizations 

issued in association with similar 

construction activities. Measurements 

from similar pile driving events were 

coupled with practical spreading loss 

and other relevant information to 

estimate harassment zones (see 

Estimated Take); these zones were used 

to develop mitigation measures for DTH 

and pile driving activities at the eight 

facilities. Background discussion related 

to underwater sound concepts and 

terminology is provided in the section 

on Description of Sound Sources, in the 

proposed rule (88 FR 26432, April 28, 

2023). 

The following mitigation measures 

will be implemented: 

• Avoid direct physical interaction 

with marine mammals during 

construction activity. If a marine 

mammal comes within 20 m of such 

activity, operations must cease and 

vessels must reduce speed to the 

minimum level required to maintain 

steerage and safe working conditions. 

The Coast Guard has elected to establish 

a minimum shutdown zone size of 20 

m, which is larger than NMFS’ typical 

requirement of a minimum 10 m 

shutdown zone; 

• Conduct training between 

construction supervisors and crews and 

the marine mammal monitoring team 

and relevant Coast Guard staff prior to 

the start of all DTH drilling, pile 

driving, cutting or power washing 

activity and when new personnel join 

the work, so that responsibilities, 

communication procedures, monitoring 

protocols, and operational procedures 

are clearly understood; 

• DTH and pile driving activity must 

be halted upon observation of either a 

species for which incidental take is not 

authorized or a species for which 

incidental take has been authorized but 

the authorized number of takes has been 

met, entering or within the harassment 

zone; 

• The Coast Guard will establish and 

implement a minimum shutdown zone 

of 20 m during all DTH, pile driving and 

removal activity, as well as the larger 

zones indicated in table 17. The purpose 

of a shutdown zone is generally to 

define an area within which shutdown 

of the activity would occur upon 

sighting of a marine mammal (or in 

anticipation of an animal entering the 

defined area). Shutdown zones typically 

vary based on the activity type and 

marine mammal hearing group. The 

Coast Guard has elected to establish a 

minimum shutdown zone size of 20 m, 

which is larger than NMFS’ typical 

requirement of a minimum 10 m 

shutdown zone; 

• Employ PSOs and establish 

monitoring locations as described in the 

application, any issued LOA and the 

Marine Mammal Monitoring Plan. The 

Coast Guard must monitor the project 

area to the maximum extent possible 

based on the required number of PSOs, 

required monitoring locations, and 

environmental conditions. Anticipated 

observable zones within the designated 

monitoring zones shall be identified in 

the Marine Mammal Monitoring Plan, 

subject to approval by NMFS. For all 

DTH and pile driving at least one PSO 

must be used. The PSO will be stationed 

as close to the activity as possible; 

• The placement of the PSOs during 

all DTH and pile driving activities will 

ensure that the entire shutdown zone is 

visible during pile installation. Should 

environmental conditions deteriorate 

such that marine mammals within the 

entire shutdown zone will not be visible 

(e.g., fog, heavy rain), pile driving must 

be delayed until the PSO is confident 

marine mammals within the shutdown 

zone could be detected; 

• Monitoring must take place from 30 

minutes prior to initiation of DTH and 

pile driving activity through 30 minutes 

post-completion of DTH and pile 

driving activity. Pre-start clearance 

monitoring must be conducted during 

periods of visibility sufficient for the 

lead PSO to determine the shutdown 

zones clear of marine mammals. DTH 

and pile driving may commence 

following 30 minutes of observation 

when the determination is made; 

• If DTH or pile driving is delayed or 

halted due to the presence of a marine 

mammal, the activity may not 

commence or resume until either the 

animal has voluntarily exited and been 

visually confirmed beyond the 

shutdown zone or 15 minutes have 

passed without re-detection of the 

animal; 

• The Coast Guard must use soft start 

techniques prior to beginning impact 

pile driving. Soft start requires 

contractors to provide an initial set of 

three strikes at reduced energy, followed 

by a 30-second waiting period, then two 

subsequent reduced-energy strike sets. 

A soft start must be implemented at the 

start of each day’s impact pile driving 

and at any time following cessation of 

impact pile driving for a period of 30 

minutes or longer; 

• As described previously, the Coast 

Guard would adhere to in-water work 

windows designed for the protection of 

fishes and marine mammals under other 

permitting requirements; 

• The Coast Guard has volunteered 

that in-water construction activities will 

occur only during civil daylight hours; 

and 

• Pile driving activity must be halted 

upon observation of either a species for 

which incidental take is not authorized 

or a species for which incidental take 

has been authorized but the authorized 

number of takes has been met, entering 

or within the largest applicable 

harassment zone. 

TABLE 17—SHUTDOWN ZONES (m) FOR EACH PILE TYPE AND METHOD

Method and pile type 

Low 

frequency 

cetacean 

Mid 

frequency 

cetacean 

High 

frequency 

cetacean 

Phocid Otariid 

Timber Vibratory .......................................................................... 20 20 20 20 20 

24-inch Steel Pipe Vibratory ........................................................ 20 20 20 20 20 

Timber Impact .............................................................................. 20 20 30 20 20 

Composite Impact ........................................................................ 20 20 20 20 20 

24-inch Steel Pipe Impact ............................................................ 220 20 260 120 20 

24-inch Concrete Impact .............................................................. 30 20 40 20 20 

24-inch DTH ................................................................................. 440 20 520 240 20 


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Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Rules and Regulations 87953 

Based on our evaluation of the 

applicant’s planned measures, as well as 

other measures considered by NMFS, 

NMFS has determined that the 

mitigation measures provide the means 

effecting the least practicable impact on 

the affected species or stocks and their 

habitat, paying particular attention to 

rookeries, mating grounds, and areas of 

similar significance, and on the 

availability of such species or stock for 

subsistence uses. 

Monitoring and Reporting 

In order to issue an LOA for an 

activity, Section 101(a)(5)(A) of the 

MMPA states that NMFS must set forth 

requirements pertaining to the 

monitoring and reporting of the 

authorized taking. The MMPA 

implementing regulations at 50 CFR 

216.104(a)(13) indicate that requests for 

authorizations must include the 

suggested means of accomplishing the 

necessary monitoring and reporting that 

will result in increased knowledge of 

the species and of the level of taking or 

impacts on populations of marine 

mammals that are expected to be 

present in the action area. Effective 

reporting is critical both to compliance 

as well as ensuring that the most value 

is obtained from the required 

monitoring. 

Monitoring and reporting 

requirements prescribed by NMFS 

should contribute to improved 

understanding of one or more of the 

following: 

• Occurrence of marine mammal 

species or stocks in the area in which 

take is anticipated (e.g., presence, 

abundance, distribution, density). 

• Nature, scope, or context of likely 

marine mammal exposure to potential 

stressors/impacts (individual or 

cumulative, acute or chronic), through 

better understanding of: (1) action or 

environment (e.g., source 

characterization, propagation, ambient 

noise); (2) affected species (e.g., life 

history, dive patterns); (3) co-occurrence 

of marine mammal species with the 

action; or (4) biological or behavioral 

context of exposure (e.g., age, calving, or 

feeding areas). 

• Individual marine mammal 

responses (behavioral or physiological) 

to acoustic stressors (acute, chronic, or 

cumulative), other stressors, or 

cumulative impacts from multiple 

stressors. 

• How anticipated responses to 

stressors impact either: (1) long-term 

fitness and survival of individual 

marine mammals; or (2) populations, 

species, or stocks. 

• Effects on marine mammal habitat 

(e.g., marine mammal prey species, 

acoustic habitat, or important physical 

components of marine mammal habitat). 

• Mitigation and monitoring 

effectiveness. 

Visual Monitoring 

• Monitoring must be conducted by 

qualified, NMFS-approved PSOs, in 

accordance with the following: PSOs 

must be independent (i.e., not 

construction personnel) and have no 

other assigned tasks during monitoring 

periods. At least one PSO must have 

prior experience performing the duties 

of a PSO during construction activity 

pursuant to a NMFS-issued incidental 

take authorization. Other PSOs may 

substitute education (degree in 

biological science or related field), or 

training for experience. The Coast Guard 

shall submit PSO curriculum vitae (CVs) 

for approval by NMFS. PSOs must be 

approved by NMFS prior to beginning 

any activity subject to any LOA issued 

pursuant to this rule. 

• PSOs must record all observations 

of marine mammals as described in any 

issued LOA and the NMFS-approved 

Marine Mammal Monitoring Plan, 

regardless of distance from the pile 

being driven. PSOs shall document any 

behavioral reactions in concert with 

distance from piles being driven or 

removed; 

PSOs must have the following 

additional qualifications: 

• Ability to conduct field 

observations and collect data according 

to assigned protocols; 

• Experience or training in the field 

identification of marine mammals, 

including the identification of 

behaviors; 

• Sufficient training, orientation, or 

experience with the construction 

operation to provide for personal safety 

during observations; 

• Writing skills sufficient to prepare a 

report of observations including but not 

limited to the number and species of 

marine mammals observed; dates and 

times when in-water construction 

activities were conducted; dates, times, 

and reason for implementation of 

mitigation (or why mitigation was not 

implemented when required); and 

marine mammal behavior; and 

• Ability to communicate orally, by 

radio or in person, with project 

personnel to provide real-time 

information on marine mammals 

observed in the area as necessary; 

• The Coast Guard must establish the 

following monitoring locations. For all 

pile driving activities, a minimum of 

one PSO must be assigned to the active 

pile driving location to monitor the 

shutdown zones and as much of the 

Level B harassment zones as possible. 

Possible monitoring locations are shown 

in Figures 6–1 through 6–41 of the 

application and summarized in table 18. 

The number of PSOs required at each 

facility is dependent upon the size of 

the Level B harassment area as well as 

the topography of the activity site and 

a PSO’s ability to observe the estimated 

Level A harassment area for the 

particular activity. Where a team of 

three or more PSOs is required, a lead 

observer or monitoring coordinator must 

be designated. The lead observer must 

have prior experience performing the 

duties of a PSO during construction 

activity pursuant to a NMFS-issued 

incidental take authorization. 

TABLE 18—SUMMARY OF PROTECTED

SPECIES OBSERVER (PSO) COVERAGE AT EACH FACILITY

Facility 

Maximum 

number 

of PSOs 

Kodiak ................................... 2 

Sitka ...................................... 5 

Ketchikan .............................. 5 

Valdez ................................... 3 

Cordova ................................ 3 

Juneau .................................. 3 

Petersburg ............................ 3 

Seward .................................. 2 

Reporting 

A draft marine mammal monitoring 

report will be submitted to NMFS 

within 90 days after the completion of 

pile driving activities, or 60 days prior 

to a requested date of issuance of any 

future LOAs for projects at the same 

location, whichever comes first. The 

report will include an overall 

description of work completed, a 

narrative regarding marine mammal 

sightings, and associated PSO data 

sheets. Specifically, the report must 

include: 

• Dates and times (begin and end) of 

all marine mammal monitoring. 

• Construction activities occurring 

during each daily observation period, 

including the number and type of piles 

driven or removed and by what method 

(i.e., impact or cutting) and the total 

equipment duration. When possible, the 

report should include the number of 

strikes for each pile (impact driving, 

DTH) and, for DTH, the duration of 

operation for both impulsive and nonimpulsive components as well as the 

strike rate. 

• PSO locations during marine 

mammal monitoring. 

• Environmental conditions during 

monitoring periods (at beginning and 

end of PSO shift and whenever 

conditions change significantly), 


ddrumheller on DSK120RN23PROD with RULES1
87954 Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Rules and Regulations 

including Beaufort sea state and any 

other relevant weather conditions such 

as cloud cover, fog, sun glare, and 

overall visibility to the horizon, and 

estimated observable distance; 

• Upon observation of a marine 

mammal, the following information: 

name of PSO who sighted the animal(s), 

and PSO location and activity at time of 

sighting; time of sighting; identification 

of the animal(s) (e.g., genus/species, 

lowest possible taxonomic level, or 

unidentified), PSO confidence in 

identification, and the composition of 

the group if there is a mix of species; 

distance and bearing of each marine 

mammal observed relative to the pile 

being driven for each sighting (if pile 

driving was occurring at time of 

sighting); estimated number of animals 

(min/max/best estimate); estimated 

number of animals by cohort (adults, 

juveniles, neonates, group composition, 

etc.); animal’s closest point of approach 

and estimated time spent within the 

harassment zone; and description of any 

marine mammal behavioral observations 

(e.g., observed behaviors such as feeding 

or traveling), including an assessment of 

behavioral responses thought to have 

resulted from the activity (e.g., no 

response or changes in behavioral state 

such as ceasing feeding, changing 

direction, flushing, or breaching); 

• Number of marine mammals 

detected within the harassment zones, 

by species; and 

• Detailed information about any 

implementation of any mitigation 

triggered (e.g., shutdowns and delays), a 

description of specific actions that 

ensued, and resulting changes in 

behavior of the animal(s), if any. 

If no comments are received from 

NMFS within 30 days, the draft final 

report will constitute the final report. If 

comments are received, a final report 

addressing NMFS comments must be 

submitted within 30 days after receipt of 

comments. 

Reporting Injured or Dead Marine 

Mammals 

In the event that personnel involved 

in the construction activities discover 

an injured or dead marine mammal, the 

Coast Guard must immediately cease the 

specified activities and report the 

incident to the NMFS Office of 

Protected Resources (OPR) 

(PR.ITP.MonitoringReports@noaa.gov) 

and to the Alaska Regional Stranding 

Coordinator as soon as feasible. If the 

death or injury was likely caused by the 

specified activity, the Coast Guard must 

immediately cease the specified 

activities until NMFS is able to review 

the circumstances of the incident and 

determine what, if any, additional 

measures are appropriate to ensure 

compliance with the terms of the LOA 

and regulations. The Coast Guard must 

not resume their activities until notified 

by NMFS. The report must include the 

following information: 

• Time, date, and location (latitude/ 

longitude) of the first discovery (and 

updated location information if known 

and applicable); 

• Species identification (if known) or 

description of the animal(s) involved; 

• Condition of the animal(s) 

(including carcass condition if the 

animal is dead); 

• Observed behaviors of the 

animal(s), if alive; 

• If available, photographs or video 

footage of the animal(s); and 

• General circumstances under which 

the animal was discovered. 

Negligible Impact Analysis and 

Determination 

NMFS has defined negligible impact 

as an impact resulting from the 

specified activity that cannot be 

reasonably expected to, and is not 

reasonably likely to, adversely affect the 

species or stock through effects on 

annual rates of recruitment or survival 

(50 CFR 216.103). A negligible impact 

finding is based on the lack of likely 

adverse effects on annual rates of 

recruitment or survival (i.e., populationlevel effects). An estimate of the number 

of takes alone is not enough information 

on which to base an impact 

determination. In addition to 

considering estimates of the number of 

marine mammals that might be ‘‘taken’’ 

through harassment, NMFS considers 

other factors, such as the likely nature 

of any responses (e.g., intensity, 

duration), the context of any responses 

(e.g., critical reproductive time or 

location, migration), as well as effects 

on habitat, and the likely effectiveness 

of the mitigation. We also assess the 

number, intensity, and context of 

estimated takes by evaluating this 

information relative to population 

status. Consistent with the 1989 

preamble for NMFS’ implementing 

regulations (54 FR 40338, September 29, 

1989), the impacts from other past and 

ongoing anthropogenic activities are 

incorporated into this analysis via their 

impacts on the environmental baseline 

(e.g., as reflected in the regulatory status 

of the species, population size and 

growth rate where known, ongoing 

sources of human-caused mortality, or 

ambient noise levels). 

DTH and pile driving activities 

associated with the maintenance 

projects, as described previously, have 

the potential to disturb or displace 

marine mammals. Specifically, the 

specified activities may result in take, in 

the form of Level B harassment 

(behavioral disturbance) only for all 

species other than the harbor porpoise, 

harbor seal, and Dall’s porpoise from 

underwater sounds generated from DTH 

and pile driving. Potential takes could 

occur if individual marine mammals are 

present in the ensonified zone when 

DTH or pile driving is happening. 

No serious injury or mortality would 

be expected even in the absence of the 

mitigation measures. For all species 

other than the harbor seal, harbor 

porpoise and Dall’s porpoise, no Level 

A harassment is anticipated due to the 

confined nature of the facilities, the 

ability to position PSOs at stations from 

which they can observe the entire 

shutdown zones, and the high visibility 

of the species expected to be present at 

each site. Additionally, much of the 

anticipated activity would involve 

vibratory driving or installation of 

small-diameter, non-steel piles, and 

include measures designed to minimize 

the possibility of injury. The potential 

for injury is small for mid- and lowfrequency cetaceans and sea lions, and 

is expected to be essentially eliminated 

through implementation of the planned 

mitigation measures—soft start (for 

impact driving), and shutdown zones. 

DTH and impact driving, as compared 

with vibratory driving, have source 

characteristics (short, sharp pulses with 

higher peak levels and much sharper 

rise time to reach those peaks) that are 

potentially injurious or more likely to 

produce severe behavioral reactions. 

Given sufficient notice through use of 

soft start, marine mammals are expected 

to move away from a sound source that 

is annoying prior to it becoming 

potentially injurious or resulting in 

more severe behavioral reactions. 

Environmental conditions in these 

waters are expected to generally be 

good, with calm sea states, and we 

expect conditions would allow a high 

marine mammal detection capability, 

enabling a high rate of success in 

implementation of shutdowns to avoid 

injury. 

As described previously, there are 

multiple species that should be 

considered rare in the project areas and 

for which we propose to authorize only 

nominal and precautionary take. 

Therefore, we do not expect meaningful 

impacts to these species (i.e., gray 

whale, minke whale, transient and 

resident killer whales, and California 

sea lions) and find that the total marine 

mammal take from each of the specified 

activities will have a negligible impact 

on these marine mammal species. 

For remaining species, we discuss the 

likely effects of the specified activities 


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in greater detail here. Effects on 

individuals that are taken by Level B 

harassment, on the basis of reports in 

the literature as well as monitoring from 

other similar activities, will likely be 

limited to reactions such as increased 

swimming speeds, increased surfacing 

time, or decreased foraging (if such 

activity were occurring) (e.g., Thorson 

and Reyff, 2006; U.S. Navy, 2012; 

Lerma, 2014). Most likely, individuals 

will simply move away from the sound 

source and be temporarily displaced 

from the areas of pile driving, although 

even this reaction has been observed 

primarily only in association with 

impact pile driving. The pile driving 

activities analyzed here are similar to, or 

less impactful than, numerous other 

construction activities conducted in 

Alaska, San Francisco Bay and in the 

Puget Sound region, which have taken 

place with no known long-term adverse 

consequences from behavioral 

harassment. 

The U.S. Navy has conducted multiyear activities in various locations such 

as San Diego Bay and Puget Sound, 

potentially affecting marine mammals, 

and typically involving greater levels of 

activity than what is contemplated here. 

Reporting from these activities has 

similarly documented no apparently 

consequential behavioral reactions or 

long-term effects on marine mammal 

populations (Lerma, 2014; U.S. Navy, 

2016a and b). 

Repeated exposures of individuals to 

relatively low levels of sound outside of 

preferred habitat areas are unlikely to 

significantly disrupt critical behaviors. 

Thus, even repeated Level B harassment 

of some small subset of the overall stock 

is unlikely to result in any significant 

realized decrease in viability for the 

affected individuals, and thus would 

not result in any adverse impact to the 

stock as a whole. Level B harassment 

will be reduced to the level of least 

practicable adverse impact through use 

of mitigation measures described herein 

and, if sound produced by project 

activities is sufficiently disturbing, 

animals are likely to simply avoid the 

area while the activity is occurring. 

While vibratory driving or DTH 

associated with some project 

components may produce sound at 

distances of many kilometers from the 

pile driving site, thus intruding on 

higher-quality habitat, the project sites 

themselves and the majority of sound 

fields produced by the specified 

activities are within industrialized 

areas. Therefore, we expect that animals 

annoyed by project sound would simply 

avoid the area and use more-preferred 

habitats. 

In addition to the expected effects 

resulting from authorized Level B 

harassment, we anticipate that harbor 

seals, harbor porpoises, and Dall’s 

porpoises may sustain some limited 

Level A harassment in the form of 

auditory injury at four of the facilities, 

assuming they remain within a given 

distance of the pile driving activity for 

the full number of pile strikes or DTH 

strikes. Considering the short duration 

to impact drive or vibrate each pile and 

breaks between pile installations (to 

reset equipment and move pile into 

place), this means an animal would 

have to remain within the area 

estimated to be ensonified above the 

Level A harassment threshold for 

multiple hours. This is highly unlikely 

given marine mammal movement 

throughout the area. Harbor seals and 

porpoises in these locations that do 

experience PTS would likely only 

receive slight PTS, i.e., minor 

degradation of hearing capabilities 

within regions of hearing that align most 

completely with the energy produced by 

DTH or pile driving, i.e., the lowfrequency region below 2 kHz, not 

severe hearing impairment or 

impairment in the regions of greatest 

hearing sensitivity. If hearing 

impairment occurs, it is most likely that 

the affected animal would lose a few 

decibels in its hearing sensitivity, which 

in most cases is not likely to 

meaningfully affect its ability to forage 

and communicate with conspecifics. As 

described above, we expect that marine 

mammals would be likely to move away 

from a sound source that represents an 

aversive stimulus, especially at levels 

that would be expected to result in PTS, 

given sufficient notice through use of 

soft start. Shutdown zones for the 

porpoises are only slightly smaller than 

the extent of the Level A harassment 

zones, further minimizing the chances 

for PTS or more severe effects. 

In addition, although affected 

humpback whales and Steller sea lions 

may be from distinct population 

segments (DPSs) that are listed under 

the ESA, it is unlikely that minor noise 

impacts in a small, localized area of suboptimal habitat would have any effect 

on the stocks’ ability to recover. In 

combination, we believe that these 

factors, as well as the available body of 

evidence from other similar activities, 

demonstrate that the potential effects of 

the specified activities will have only 

minor, short-term effects on individuals. 

The specified activities are not expected 

to impact rates of recruitment or 

survival and will therefore not result in 

population-level impacts. 

In summary and as described above, 

the following factors primarily support 

our determination that the impacts 

resulting from this activity are not 

expected to adversely affect the species 

or stock through effects on annual rates 

of recruitment or survival: 

• No mortality is anticipated or 

authorized. 

• Use of soft start (for impact driving) 

is expected to minimize Level A 

harassment. 

• No important habitat areas have 

been identified within the project area. 

• For all species, the project locations 

are a very small and generally 

peripheral part of their range. 

• Authorized Level A harassment 

would be very small amounts and of 

low degree. 

• Monitoring reports from similar 

work in many of the locations in Alaska 

have documented little to no effect on 

individuals of the same species 

impacted by the specified activities. 

Based on the analysis contained 

herein of the likely effects of the 

specified activity on marine mammals 

and their habitat, and taking into 

consideration the implementation of the 

monitoring and mitigation measures, 

NMFS finds that the total marine 

mammal take from the planned 

activities will have a negligible impact 

on the affected marine mammal species 

or stocks. 

Small Numbers 

As noted above, only small numbers 

of incidental take may be authorized 

under Section 101(a)(5)(A) of the MMPA 

for specified activities. The MMPA does 

not define small numbers and so, in 

practice, where estimated numbers are 

available, NMFS compares the number 

of individuals taken to the most 

appropriate estimation of abundance of 

the relevant species or stock in our 

determination of whether an 

authorization is limited to small 

numbers of marine mammals. When the 

predicted number of individuals to be 

taken is fewer than one-third of the 

species or stock abundance, the take is 

considered to be of small numbers. 

Additionally, other qualitative factors 

may be considered in the analysis, such 

as the temporal or spatial scale of the 

activities. 

The amount of take NMFS is 

authorizing is below one-third of the 

estimated stock abundance of all species 

and stocks (take of individuals is less 

than 14 percent of the abundance of the 

affected stocks for the year of this 

rulemaking with the maximum amount 

of activity; see table 19). This is likely 

a conservative estimate because it 

assumes all takes are of different 

individual animals, which is likely not 

the case. Some individuals may return 


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multiple times in a day, but PSOs would 

count them as separate takes if they 

cannot be individually identified. 

For fin whale, minke whale, Dall’s 

porpoise, and Southeast Alaska harbor 

porpoise, no valid abundance estimate 

for the entire stock is available. There is 

no stock-wide abundance estimate for 

Northeast Pacific fin whales. However, 

Muto et al. (2021) estimate the 

minimum stock size for the areas 

surveyed is 2,554. Therefore, the 23 

maximum annual authorized takes of 

this stock represents small numbers of 

this stock. There is no stock-wide 

abundance estimate for the Alaska stock 

of minke whales. However, Muto et al. 

(2021) show over 2,000 animals for 

areas surveyed recently. Therefore, the 

six maximum annual authorized takes 

of this stock represents small numbers 

of this stock. The Alaska stock of Dall’s 

porpoise has no official NMFS 

abundance estimate for this area, as the 

most recent estimate is greater than 8 

years old. Nevertheless, the most recent 

estimate was 83,400 animals and it is 

unlikely this number has drastically 

declined. Therefore, the 245 maximum 

annual authorized takes of this stock 

represents small numbers of this stock. 

There is no stock-wide abundance 

estimate for the Southeast Alaska stock 

of harbor porpoises. However, Muto et 

al. (2021) estimate the minimum stock 

size for the areas surveyed is 1,057. 

Therefore, the 92 maximum annual 

authorized takes of this stock represents 

small numbers of this stock. Therefore, 

we find that small numbers of marine 

mammals will be taken relative to the 

population size of all stocks. 

Based on the analysis contained 

herein of the planned activity (including 

the mitigation and monitoring 

measures) and the anticipated take of 

marine mammals, NMFS finds that 

small numbers of marine mammals will 

be taken relative to the population sizes 

of the affected species or stocks. 

Unmitigable Adverse Impact Analysis 

and Determination 

In order to issue regulations and 

LOAs, NMFS must find that the 

specified activity will not have an 

‘‘unmitigable adverse impact’’ on the 

subsistence uses of the affected marine 

mammal species or stocks by Alaskan 

Natives. NMFS has defined 

‘‘unmitigable adverse impact’’ in 50 CFR 

216.103 as an impact resulting from the 

specified activity: (1) that is likely to 

reduce the availability of the species to 

a level insufficient for a harvest to meet 

subsistence needs by: (i) causing the 

marine mammals to abandon or avoid 

hunting areas; (ii) directly displacing 

subsistence users; or (iii) placing 

physical barriers between the marine 

mammals and the subsistence hunters; 

and (2) that cannot be sufficiently 

mitigated by other measures to increase 

the availability of marine mammals to 

allow subsistence needs to be met. 

As discussed above in the Effects of 

Specified Activities on Subsistence Uses 

of Marine Mammals section, subsistence 

harvest of harbor seals and other marine 

mammals is rare in the project areas and 

local subsistence users have not 

expressed concern about this project. 

All project activities will take place 

within industrialized areas where 

subsistence activities do not generally 

occur. The project also will not have an 

adverse impact on the availability of 

marine mammals for subsistence use at 

locations farther away, where these 

construction activities are not expected 

to take place. Some minor, short-term 

harassment of the harbor seals could 

occur, but any effects on subsistence 

harvest activities in the region will be 

minimal, and will not have an adverse 

impact. 

Based on the effects and locations of 

the specified activity, and the mitigation 

and monitoring measures, NMFS has 

determined that there will not be an 

unmitigable adverse impact on 

subsistence uses from the Coast Guard’s 

planned activities. 

Adaptive Management 

The regulations governing the take of 

marine mammals incidental to Coast 

Guard maintenance construction 

activities would contain an adaptive 

management component. 

The reporting requirements associated 

with this final rule are designed to 

provide NMFS with monitoring data 

from the previous year to allow 

consideration of whether any changes 

are appropriate. The use of adaptive 

management allows NMFS to consider 

new information from different sources 

to determine (with input from the Coast 

Guard regarding practicability) on an 

annual basis if mitigation or monitoring 

measures should be modified (including 

additions or deletions). Mitigation 

measures could be modified if new data 

suggests that such modifications would 

have a reasonable likelihood of reducing 

adverse effects to marine mammals and 

if the measures are practicable. 

The following are some of the 

possible sources of applicable data to be 

considered through the adaptive 

management process: (1) results from 

monitoring reports, as required by 

MMPA authorizations; (2) results from 

general marine mammal and sound 

research; and (3) any information which 

reveals that marine mammals may have 

been taken in a manner, extent, or 

number not authorized by these 

regulations or subsequent LOAs. 

Endangered Species Act 

Section 7(a)(2) of the Endangered 

Species Act of 1973 (16 U.S.C. 1531 et 

seq.) requires that each Federal agency 

insure that any action it authorizes, 

funds, or carries out is not likely to 

jeopardize the continued existence of 

any endangered or threatened species or 

result in the destruction or adverse 

modification of designated critical 

habitat. To ensure ESA compliance for 

the issuance of regulations and LOAs, 

NMFS consults internally, in this case 

with the Alaska Regional Office, 

whenever we propose to authorize take 

for endangered or threatened species. 

NMFS is authorizing take of Western 

DPS Steller sea lions (Eumetopias 

jubatus), fin whales (Balenoptera 

physalus), and Mexico DPS of 

humpback whales (Megaptera 

novaeangliae), which are listed under 

the ESA. The NMFS Alaska Regional 

Office issued a Biological Opinion 

under Section 7 of the ESA (https://

www.fisheries.noaa.gov/action/ 

incidental-take-authorization-us-coastguards-alaska-facility-maintenanceand-repair) on the issuance of 

regulations and an LOA to the Coast 

Guard under section 101(a)(5)(D) of the 

MMPA by the NMFS Office of Protected 

Resources. The Biological Opinion 

concluded that the proposed action is 

not likely to jeopardize the continued 

existence of Western DPS Steller sea 

lions, fin whales, or humpback whales 

from either the Mexico or Western 

North Pacific DPSs. 

National Environmental Policy Act 

To comply with the National 

Environmental Policy Act of 1969 

(NEPA; 42 U.S.C. 4321 et seq.) and 

NOAA Administrative Order (NAO) 

216–6A, NMFS must evaluate our 

proposed action (i.e., the promulgation 

of regulations and subsequent issuance 

of incidental take authorization) and 

alternatives with respect to potential 

impacts on the human environment. 

This action is consistent with 

categories of activities identified in 

Categorical Exclusion B4 of the 

Companion Manual for NAO 216–6A, 

which do not individually or 

cumulatively have the potential for 

significant impacts on the quality of the 

human environment and for which we 

have not identified any extraordinary 

circumstances that would preclude this 

categorical exclusion. Accordingly, 

NMFS has determined that this action 

qualifies to be categorically excluded 

from further NEPA review. 


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Classification 

Pursuant to the procedures 

established to implement Executive 

Order 12866, the Office of Management 

and Budget has determined that this 

rule is not significant. 

Pursuant to section 605(b) of the 

Regulatory Flexibility Act (RFA), the 

Chief Counsel for Regulation of the 

Department of Commerce has certified 

to the Chief Counsel for Advocacy of the 

Small Business Administration at the 

proposed rule stage that this action will 

not have a significant economic impact 

on a substantial number of small 

entities. The Coast Guard is the sole 

entity that would be subject to the 

requirements in these proposed 

regulations, and the Coast Guard is not 

a small governmental jurisdiction, small 

organization, or small business, as 

defined by the RFA. No comments were 

received regarding this certification, and 

the factual basis for the certification has 

not changed. As a result, a regulatory 

flexibility analysis was not required and 

none was prepared. 

This final rule does not contain a 

collection-of-information requirement 

subject to the provisions of the 

Paperwork Reduction Act because the 

applicant is a Federal agency. 

List of Subjects in 50 CFR Part 217 

Exports, Fish, Imports, Indians, 

Labeling, Marine mammals, Penalties, 

Reporting and recordkeeping 

requirements, Seafood, Transportation. 

Dated: December 14, 2023. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For reasons set forth in the preamble, 

NMFS amends 50 CFR part 217 as 

follows: 

PART 217—REGULATIONS 

GOVERNING THE TAKING OF MARINE 

MAMMALS INCIDENTAL TO 

SPECIFIED ACTIVITES 

■ 1. The authority citation for part 217 

continues to read as follows: 

Authority: 16 U.S.C. 1361 et seq. 

■ 2. Add subpart T to read as follows: 

Subpart T—Taking Marine Mammals 

Incidental to U.S. Coast Guard Alaska 

Facility Maintenance and Repair Activities 

Sec. 

217.190 Specified activity and specified 

geographical region. 

217.191 Effective dates. 

217.192 Permissible methods of taking. 

217.193 Prohibitions. 

217.194 Mitigation requirements. 

217.195 Requirements for monitoring and 

reporting. 

217.196 Letters of Authorization. 

217.197 Renewals and modifications of 

Letters of Authorization. 

217.198–217.199 [Reserved] 

Subpart T—Taking Marine Mammals 

Incidental to U.S. Coast Guard Alaska 

Facility Maintenance and Repair 

Activities 

§ 217.190 Specified activity and specified 

geographical region. 

(a) Regulations in this subpart apply 

only to incidental taking of marine 

mammals by the U.S. Coast Guard 

(Coast Guard) and those persons it 

authorizes or funds to conduct activities 

on its behalf in the areas outlined in 

paragraph (b) of this section and that 

occurs incidental to maintenance 

construction activities. 

(b) The taking of marine mammals by 

the Coast Guard may be authorized in a 

Letter of Authorization (LOA) only if it 

occurs within Gulf of Alaska waters in 

the vicinity of one of the following eight 

Coast Guard facilities: Kodiak, Sitka, 

Ketchikan, Valdez, Cordova, Juneau, 

Petersburg, and Seward. 

§ 217.191 Effective dates. 

Regulations in this subpart are 

effective from March 1, 2024, through 

February 28, 2029. 

§ 217.192 Permissible methods of taking. 

Under LOAs issued pursuant to 

§§ 216.106 of this chapter and 217.196, 

the Holder of the LOA (hereinafter 

‘‘Coast Guard’’) may incidentally, but 

not intentionally, take marine mammals 

within the areas described in 

§ 217.190(b) by Level A or Level B 

harassment associated with 

maintenance construction activities, 

provided the activity is in compliance 

with all terms, conditions, and 

requirements of the regulations in this 

subpart and the appropriate LOA. 

§ 217.193 Prohibitions. 

Except for takings described in 

§ 217.192 and authorized by a LOA 

issued under §§ 216.106 of this chapter 

and 217.196, it shall be unlawful for any 

person to do any of the following in 

connection with the activities described 

in § 217.190: 

(a) Violate, or fail to comply with, the 

terms, conditions, and requirements of 

this subpart or a LOA issued under 

§§ 216.106 of this chapter and 217.196; 

(b) Take any marine mammal not 

specified in such LOAs; 

(c) Take any marine mammal 

specified in such LOAs in any manner 

other than as authorized; 

(d) Take a marine mammal specified 

in such LOAs after NMFS determines 

such taking results in more than a 

negligible impact on the species or 

stocks of such marine mammal; or 

(e) Take a marine mammal specified 

in such LOAs after NMFS determines 

such taking results in an unmitigable 

adverse impact on the species or stock 

of such marine mammal for taking for 

subsistence uses. 

§ 217.194 Mitigation requirements. 

When conducting the activities 

identified in § 217.190(a), the mitigation 

measures contained in this subpart and 

any LOA issued under §§ 216.106 of this 

chapter and 217.196 must be 

implemented. These mitigation 

measures shall include but are not 

limited to: 

(a) General conditions: 

(1) A copy of any issued LOA must be 

in the possession of the Coast Guard, 

supervisory construction personnel, 

lead protected species observers, and 

any other relevant designees of the 

Coast Guard operating under the 

authority of this LOA at all times that 

activities subject to this LOA are being 

conducted. 

(2) The Coast Guard shall conduct 

training between construction 

supervisors and crews and the marine 

mammal monitoring team and relevant 

Coast Guard staff prior to the start of all 

down-the-hole (DTH), pile driving, 

cutting or power washing activity and 

when new personnel join the work, so 

that responsibilities, communication 

procedures, monitoring protocols, and 

operational procedures are clearly 

understood. 

(3) The Coast Guard shall avoid direct 

physical interaction with marine 

mammals during construction activity. 

If a marine mammal comes within 20 m 

of an activity regulated under this 

subpart, operations must cease and 

vessels must reduce speed to the 

minimum level required to maintain 

steerage and safe working conditions. 

(b) Shutdown zones: 

(1) For all DTH, pile driving, cutting 

or power washing activity, the Coast 

Guard shall implement a minimum 

shutdown zone of a 20-m radius around 

the pile or DTH hole. If a marine 

mammal comes within or approaches 

the shutdown zone, such operations 

shall cease. 

(2) For all DTH and pile driving 

activity, the Coast Guard shall 

implement shutdown zones with radial 

distances as identified in any LOA 

issued under §§ 216.106 of this chapter 

and 217.196. If a marine mammal comes 

within or approaches the shutdown 

zone, such operations shall cease. 

(3) For all DTH and pile driving 

activity, the Coast Guard shall designate 

monitoring zones with radial distances 


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as identified in any LOA issued under 

§§ 216.106 of this chapter and 217.196. 

Anticipated observable zones within the 

designated monitoring zones shall be 

identified in the Marine Mammal 

Monitoring Plan, subject to approval by 

NMFS. 

(c) Shutdown protocols: 

(1) The Coast Guard shall deploy 

Protected Species Observers (PSOs) as 

indicated in the Marine Mammal 

Monitoring Plan, which shall be subject 

to approval by NMFS, and as described 

in § 217.195. 

(2) For all DTH and pile driving 

activities, a minimum of one PSO shall 

be stationed at the active pile driving rig 

or activity site or in reasonable 

proximity in order to monitor the entire 

shutdown zone. 

(3) Monitoring must take place from 

30 minutes prior to initiation of DTH 

and pile driving activity through 30 

minutes post-completion of DTH and 

pile driving activity. Pre-start clearance 

monitoring must be conducted during 

periods of visibility sufficient for the 

lead PSO to determine the shutdown 

zones are clear of marine mammals. 

DTH and pile driving activity may 

commence following 30 minutes of 

observation when the determination is 

made. 

(4) If DTH and pile driving activity is 

delayed or halted due to the presence of 

a marine mammal, the activity may not 

commence or resume until either the 

animal has voluntarily exited and been 

visually confirmed beyond the 

shutdown zone or 15 minutes have 

passed without re-detection of the 

animal. 

(5) Should environmental conditions 

deteriorate such that marine mammals 

within the entire shutdown zone would 

not be visible (e.g., fog, heavy rain, 

night), the Coast Guard must delay inwater construction activities until 

observers are confident marine 

mammals within the shutdown zone 

could be detected. 

(6) Monitoring shall be conducted by 

trained PSOs, who shall have no other 

assigned tasks during monitoring 

periods. Trained PSOs shall be placed at 

the best vantage point(s) practicable to 

monitor for marine mammals and 

implement shutdown or delay 

procedures when applicable through 

communication with the equipment 

operator. The Coast Guard shall adhere 

to the PSO qualifications in § 217.195. 

(d) The Coast Guard must use soft 

start techniques for impact pile driving. 

Soft start for impact drivers requires 

contractors to provide an initial set of 

three strikes at reduced energy, followed 

by a 30-second waiting period, then two 

subsequent reduced energy three-strike 

sets. Soft start shall be implemented at 

the start of each day’s impact pile 

driving and at any time following 

cessation of impact pile driving for a 

period of 30 minutes or longer. 

§ 217.195 Requirements for monitoring 

and reporting. 

(a) The Coast Guard must submit a 

Marine Mammal Monitoring Plan to 

NMFS for approval in advance of 

construction. Marine mammal 

monitoring must be conducted in 

accordance with the conditions in this 

section and the Marine Mammal 

Monitoring Plan. 

(b) Monitoring must be conducted by 

qualified, NMFS-approved PSOs, in 

accordance with the following: 

(1) PSOs must be independent of the 

activity contractor (i.e. not employed by 

the construction contractor), and have 

no other assigned tasks during 

monitoring periods. 

(2) At least one PSO must have prior 

experience performing the duties of a 

PSO during construction activity 

pursuant to a NMFS-issued incidental 

take authorization. 

(3) Other PSOs may substitute 

education (degree in biological science 

or related field) or training for prior 

experience. 

(4) Where a team of three or more 

PSOs are required, one observer shall be 

designated as lead observer or 

monitoring coordinator. The lead 

observer must have prior experience 

performing the duties of a PSO during 

construction activity pursuant to a 

NMFS-issued incidental take 

authorization. 

(5) The Coast Guard must submit PSO 

curriculum vitae (CVs) for approval by 

NMFS. PSOs must be approved by 

NMFS prior to beginning any activity 

subject to this regulation. 

(c) PSOs must record all observations 

of marine mammals as described in the 

Marine Mammal Monitoring Plan, 

regardless of distance from the pile 

being driven. PSOs shall document any 

behavioral reactions in concert with 

distance from piles being driven or 

removed. 

(d) The Coast Guard shall deploy 

additional PSOs to monitor harassment 

zones according to the minimum 

requirements defined in Marine 

Mammal Monitoring Plan, subject to 

approval by NMFS. These observers 

shall collect sighting data and 

behavioral responses to pile driving for 

marine mammal species observed in the 

region of activity during the period of 

activity, and shall communicate with 

the shutdown zone observer(s) as 

appropriate with regard to the presence 

of marine mammals. All observers shall 

be trained in identification and 

reporting of marine mammal behaviors. 

(e) Reporting: 

(1) Annual reporting: 

(i) Coast Guard shall submit a draft 

monitoring report to NMFS within 90 

work days of the completion of required 

monitoring for each portion of the 

project as well as a comprehensive 

summary report at the end of the 

project. Coast Guard shall provide a 

final report within 30 days following 

resolution of comments on the draft 

report. If no work requiring monitoring 

is conducted within a calendar year, 

Coast Guard shall provide a statement to 

that effect in lieu of a draft report. 

(ii) These reports shall contain, at 

minimum, the following: 

(A) Dates and times (begin and end) 

of all marine mammal monitoring; 

(B) Construction activities occurring 

during each daily observation period, 

including the number and type of piles 

driven or removed and by what method 

(i.e., impact or vibratory) and the total 

equipment duration for vibratory or 

DTH for each pile. When possible, the 

number of strikes for each pile/hole 

(impact driving, DTH); and, for DTH, 

the duration of operation for both 

impulsive and non-impulsive 

components as well as the strike rate 

must be included; 

(C) PSO locations during marine 

mammal monitoring; 

(D) Environmental conditions during 

monitoring periods (at beginning and 

end of PSO shift and whenever 

conditions change significantly), 

including Beaufort sea state and any 

other relevant weather conditions 

including cloud cover, fog, sun glare, 

and overall visibility to the horizon, and 

estimated observable distance; 

(E) Upon observation of a marine 

mammal, the following information: 

Name of PSO who sighted the animal(s) 

and PSO location and activity at time of 

sighting; Time of sighting; Identification 

of the animal(s) (e.g., genus and species, 

lowest possible taxonomic level, or 

unidentified), PSO confidence in 

identification, and the composition of 

the group if there is a mix of species; 

Distance and bearing of each marine 

mammal observed relative to the pile 

being driven for each sighting (if pile 

driving was occurring at time of 

sighting); Estimated number of animals 

(min, max, and best estimate); Estimated 

number of animals by cohort (adults, 

juveniles, neonates, group composition, 

etc.); Animal’s closest point of approach 

and estimated time spent within the 

harassment zone; and Description of any 

marine mammal behavioral observations 

(e.g., observed behaviors such as feeding 

or traveling), including an assessment of 


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Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Rules and Regulations 87959 

behavioral responses thought to have 

resulted from the activity (e.g., no 

response or changes in behavioral state 

such as ceasing feeding, changing 

direction, flushing, or breaching); 

(F) Number of marine mammals 

detected within the harassment zones, 

by species; 

(G) Detailed information about any 

implementation of any mitigation 

triggered (e.g., shutdowns and delays), a 

description of specific actions that 

ensued, and resulting changes in 

behavior of the animal(s), if any. 

(2) Coast Guard shall submit a 

comprehensive summary report to 

NMFS not later than 90 days following 

the conclusion of marine mammal 

monitoring efforts described in this 

subpart. All PSO datasheets and/or raw 

sighting data must be submitted with 

the draft reports. 

(3) All draft and final monitoring 

reports must be submitted to 

PR.ITP.MonitoringReports@noaa.gov 

and ITP.Hotchkin@noaa.gov. 

(f) Reporting of injured or dead 

marine mammals: 

(1) In the event that personnel 

involved in the construction activities 

discover an injured or dead marine 

mammal, the Coast Guard must 

immediately cease the specified 

activities and report the incident to the 

Office of Protected Resources 

(PR.ITP.MonitoringReports@noaa.gov 

and ITP.Hotchkin@noaa.gov), NMFS 

and to Alaska Regional Stranding 

Coordinator as soon as feasible. If the 

death or injury was likely caused by the 

specified activity, the Coast Guard must 

immediately cease the specified 

activities until NMFS is able to review 

the circumstances of the incident and 

determine what, if any, additional 

measures are appropriate to ensure 

compliance with the terms of the 

regulations under this subpart and 

LOAs. The Coast Guard must not 

resume their activities until notified by 

NMFS. The report must include the 

following information: 

(i) Time, date, and location (latitude/ 

longitude) of the first discovery (and 

updated location information if known 

and applicable); 

(ii) Species identification (if known) 

or description of the animal(s) involved; 

(iii) Condition of the animal(s) 

(including carcass condition if the 

animal is dead); 

(iv) Observed behaviors of the 

animal(s), if alive; 

(v) If available, photographs or video 

footage of the animal(s); and 

(vi) General circumstances under 

which the animal was discovered. 

(2) [Reserved] 

§ 217.196 Letters of Authorization. 

(a) To incidentally take marine 

mammals pursuant to the regulations 

under this subpart, the Coast Guard 

must apply for and obtain an LOA. 

(b) An LOA, unless suspended or 

revoked, may be effective for a period of 

time not to exceed the expiration date 

of the regulations under this subpart. 

(c) If an LOA expires prior to the 

expiration date of the regulations under 

this subpart, the Coast Guard may apply 

for and obtain a renewal of the LOA. 

(d) In the event of projected changes 

to the activity or to mitigation and 

monitoring measures required by an 

LOA, the Coast Guard must apply for 

and obtain a modification of the LOA as 

described in § 217.197. 

(e) The LOA shall set forth: 

(1) Permissible methods of incidental 

taking; 

(2) Means of effecting the least 

practicable adverse impact (i.e., 

mitigation) on the species, its habitat, 

and on the availability of the species for 

subsistence uses; and 

(3) Requirements for monitoring and 

reporting. 

(f) Issuance of the LOA shall be based 

on a determination that the level of 

taking will be consistent with the 

findings made for the total taking 

allowable under the regulations of this 

subpart. 

(g) Notice of issuance or denial of an 

LOA shall be published in the Federal 

Register within 30 days of a 

determination. 

§ 217.197 Renewals and modifications of 

Letters of Authorization. 

(a) An LOA issued under §§ 216.106 

of this chapter and 217.196 for the 

activity identified in § 217.190(a) shall 

be renewed or modified upon request by 

the applicant, provided that: 

(1) The proposed specified activity 

and mitigation, monitoring, and 

reporting measures, as well as the 

anticipated impacts, are the same as 

those described and analyzed for the 

regulations under this subpart 

(excluding changes made pursuant to 

the adaptive management provision in 

paragraph (c)(1) of this section), and 

(2) NMFS determines that the 

mitigation, monitoring, and reporting 

measures required by the previous LOA 

under the regulations of this subpart 

were implemented. 

(b) For LOA modification or renewal 

requests by the applicant that include 

changes to the activity or the mitigation, 

monitoring, or reporting (excluding 

changes made pursuant to the adaptive 

management provision in paragraph 

(c)(1) of this section) that do not change 

the findings made for the regulations or 

result in no more than a minor change 

in the total estimated number of takes 

(or distribution by species or years), 

NMFS may publish a notice of proposed 

LOA in the Federal Register, including 

the associated analysis of the change, 

and solicit public comment before 

issuing the LOA. 

(c) An LOA issued under §§ 216.106 

of this chapter and 217.196 for the 

activity identified in § 217.190(a) may 

be modified by NMFS under the 

following circumstances: 

(1) Adaptive Management—NMFS 

may modify (including augment) the 

existing mitigation, monitoring, or 

reporting measures (after consulting 

with the Coast Guard regarding the 

practicability of the modifications) if 

doing so creates a reasonable likelihood 

of more effectively accomplishing the 

goals of the mitigation and monitoring. 

(i) Possible sources of data that could 

contribute to the decision to modify the 

mitigation, monitoring, or reporting 

measures in an LOA: 

(A) Results from the Coast Guard’s 

monitoring from the previous year(s). 

(B) Results from other marine 

mammal and/or sound research or 

studies. 

(C) Any information that reveals 

marine mammals may have been taken 

in a manner, extent, or number not 

authorized by the regulations under this 

subpart or subsequent LOAs. 

(ii) If, through adaptive management, 

the modifications to the mitigation, 

monitoring, or reporting measures are 

substantial, NMFS will publish a notice 

of proposed LOA in the Federal 

Register and solicit public comment. 

(2) Emergencies—If NMFS determines 

that an emergency exists that poses a 

significant risk to the well-being of the 

species or stocks of marine mammals 

specified in LOAs issued pursuant to 

§§ 216.106 of this chapter and 217.196, 

an LOA may be modified without prior 

notice or opportunity for public 

comment. Notice would be published in 

the Federal Register within 30 days of 

the action. 

§§ 217.198–217.199 [Reserved] 

[FR Doc. 2023–27843 Filed 12–19–23; 8:45 am] 

BILLING CODE 3510–22–P 


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